■' "'V ' ' [:■ ;, [, :, ■ I-:,', I, ; ! 1 r. ' r, ;'.'-■ '< r' I, r DATE DUE -m&i^ ^ I / GAYLORD PRINTED IN USA OlnrnpU Cam ^riynnl IGibtaty CORNELL UNIVERSnV LIBRARY 3 1924 069 597 312 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924069597312 CRIME IN ENGLAND VOL. I. p o w o w o D fe d J o 'O M <; o o g »i w 3^ < ■Jl o ft; u I ? H s ■s s s -5 I^ISTORY OF CRIME IN ENGLAND ILLUSTRATING THE CHANGES OF THE LAWS IN THE PROGRESS OF CIVILISATION WRITTEN FROM THE PUBLIC RECORDS AND OTHER CONTEMPORARY EVIDENCE BY LUKE OWEN PIKE, M.A. OF Lincoln's inn, barrister-at-law AUTHOR OS 'THE ENGLISH AND THEIR ORIGIN, A PROLOGUE TO AUTHENTIC ENGLISH HISTORY' ETC. VOL. I. From the ROMAN INVASION to the ACCESSION of HENRY VII LONDON SMITH, ELDER & CO., iS WATERLOO PLACE 1873 All rights reserved PREFACE. SIR Matthew Hale, one of the many great lawyers who have shown an ardent love of history, and who have earnestly laboured to discover historical truth, be- queathed his manuscripts to the Honourable Society of Lincoln's Inn. I was not fully acquainted with the extent and value of his collection until I had drawn out the plan of the present work, and brought together the greater part of my materials. Fortunately, however, I ascertained, before I began to write, that there are in the Hale MSS. a con- siderable number of refei'ences to records, with abstracts conveniently placed under various heads, which have a direct bearing upon the History of Crime. According to the terms of Hale's will, not even a member of Lincoln's Inn is permitted to consult the MSS. without express per- mission, and for that permission I have to offer the Benchers my best thanks. Some of Hale's references and abstracts are taken, word for word, from ancient calendars formerly in the Tower of London ; others are apparently the result of in- dependent research among the records themselves ; but in every instance in which I have made use of the collec- tion I have also consulted the original document. In my own notes, I have not only indicated the record from vi PEEIACE. which any fact is taken, but wherever I was directed to it by Sir Matthew Hale, I have carefully acknowledged the obligation. In the Library of the Inner Temple there is a great collection of transcripts from records, known as the Petyt MSS. ; and I am much indebted to the Benchers of that Honourable Society for the kindness and courtesy with which they granted me access to their historical treasures. To the Librarians of both Inns I must also express my thanks for the ready aid given in answer to every question. Except for the purpose of expressing thanks where thanks are due, a preface to a history is almost unneces- sary. The book should speak for itself: for its method in its text — for Its accuracy in its references. But, as I have indicated the sources from which I have drawn my materials, in a manner which has, I believe, not been previously adopted, a few words of explanation may, per- haps, be not altogether useless. The reader is in every case referred not from the text to the note, but from the note to the text, and the whole of the notes are placed at the end of the volume. My reason for this innovation is not that I regard the references to original sources as of little importance, but that I regard them as of sufficient importance to be kept distinct from the narrative and the views of the Author. To know where the historian has sought his facts is to possess a very useful guide to his character as a historian ; and this knowledge, according to the plan of the present work, can be most readily attained by simply looking to PREFACE. vii the end of the volume. A very short time will suffice for any competent critic to learn whether the information upon which the history is founded is second-hand, or — as I venture to submit it should be in every history — first- hand. Numbers of foot-notes are like the parentheses of one who relates something by word of mouth, and who fre- quently interrupts his narrative with such remarks as ' But I ought to have mentioned,' or ' I forgot to say,' or ' This is really a fact, as you may easily ascertain by reference.' It is difficult to understand why a habit which shows want of art in a story-teller has long been permitted to the historian, who should not omit to say that which, in his opinion, ought to be said, and who should, at least, possess the faculty of expressing in his text the distinction between an established fact and a mere possibility. Some authors have before adopted the expedient of placing their notes at the end, but so far as I am aware, they have all made their reference from the text to the note by attaching a number to some word in the text. This, though an improvement, still bears a likeness to a clumsy talker's repeated interrup- tion of himself with the statement that he is telling the truth. It seems better and more simple to announce, once for all, that no assertion for which there is not good warrant has wittingly been made in the text. All who wish to know what the evidence is have but to look in the side-notes of the Appendix, at the end of the volume, for the number of the page which contains the statement viii PREFACE^ to be verified. They will there, I trust, find what will convince them. In this volume it would have been almost impossible to follow the ancient plan of giving references by any kind of indication in the text. In many places, especially in the fourth chapter, almost every sentence in a para- graph has records adduced in its support, and the distraction of the reader's eye and attention by ever- recurring numbers would have been most tedious. There is, too, an advantage in the method now adopted which seems to be very much in favour of his- torical truth. It is a very stringent check upon the writer. A number attached to a word in the text, and correspond- ing with the same number attached to a description of a manuscript or a book, is very apt to mislead, as all are aware who have verified the references of preceding authors. There is commonly nothing to show whether a reference applies to a sentence, a paragraph, or a series of paragraphs ; and thus the real foundation of an im- portant assertion often remains in obscurity. No such uncertainty can exist when the plan upon which the references are made involves a statement of the fact or facts established by every document mentioned. To a reader who may cast his eye over the Appendix before looking at the text, there may possibly seem to be a disregard of chronological order. Every chapter, except the fourth, is, so to speak, a wide stage, on which the characters come and go — not, I trust, . without good reason, but without regard to the method of annalists who make a mere inventory of the events which have PREFACE. ix occurred in each year. When a period displays a number of features which are Httle less marked at the end than at the beginning, it seems to be the historian's duty to show how and why they have this power of sustaining themselves, and how they are connected one with another. These remarks would, perhaps, be unnecessary if the references were suppressed, but are necessary as an intro- duction to the references considered by themselves. The Appendix is in support of a history in which the method is essentially chronological, but which advances period by period. instead of year by year. A very large portion of the text is founded on records which have never been published, and many of which have, in all probability, never before been consulted for any historical purpose. These are described in the notes by their technical names ; and anyone who chooses can inspect them for himself at the Public Record Office. In every case, too, in which I have availed myself of collec- tions of printed records, as, for instance, Rymer's ' Foedera,' I have given a reference not only to the printed book, but to the source from which the document is taken. A reference to Rymer with this precaution, is never, as it might otherwise be, a second-hand reference to a chronicle, but always a reference to an original record, made accessible by means of the printing-press. A greater space than is occupied by the text would have been required to print in full all those hitherto un- published evidences to which reference has been made. To reprint at length what is in print elsewhere, has not, in any case, appeared necessary, because no collection of mere extracts from chronicles will prove that the history X PREFACE. agrees in the main with the context of the extracts, as well as with the extracts themselves. A few remarkable documents, however, will be found in the notes, and among them the indictment of Oldcastle, as enrolled in the King's Bench. The important points in which this original record differs from the transcript taken into Parliament by the Chief Justice of England, and after- wards enrolled on a Roll of Parliament, have also been indicated, and are well worthy of note. A historian might well believe, as historians seem to have believed hitherto, that every Roll of Parliament is an original authority, but this particular roll contains a reference to a King's Bench record, which, upon verification, reveals a striking discrepancy. Such are the difficulties with which an author has to contend who would arrive at historical truth. In full reliance upon records, I have, here and there, departed from the account given of some matters in the legal text-books ; and though I cannot hope to have altogether escaped error, I trust I shall, not be accused of being in the wrong, simply because I have placed confi- dence in the best evidence I could find. In order to avoid needless repetitions, I have pur- posely reserved various matters for future treatment. The records have been my guide in determining what should be considered the chief characteristics of every age. The present volume ends with a well-marked period of English history, and has been brought out by itself at the suggestion of gentlemen who are far more able than PREFACE. xi I am to judge how a work should be published. The materials for the rest of the history have, however, been collected ; the plan of the whole was drawn out before any of it was written, and some progress has already been made with the text of the second volume. L. Owen Pike. London ; May 1873. CONTENTS. CHAPTER I. INTRODUCTORY. FROM THE ROMAN INVASION TO THE NORMAN CONQUEST. PAGE The scope, the sources, and the difficulties of the work . . . i Teutonic origin of our Criminal Law 7 Advantage of looking beyond the Teutonic invasion .... 7 General view of Roman Conquest and Roman Culture ... 8 It is uncertain what was the condition of Britain before the Roman invasion 10 Alleged punishments and human sacrifices before the Roman occupa- tion 10 Roman punishments in the Arena 12 Value set upon human life by the Romans .... • 13 The dark side of the Roman Criminal Law 13 The origin of the more cruel punishments 14 Brighter side of the Roman Criminal Law : gradation of punishments 1 5 Justice tempered with mercy under the Empire 16 Regard for personal liberty 17 Participation of the Provinces in the benefits of Roman Law . . 18 Compassion shown under the Empire to the children of criminals . 19 Improvement in the condition of slaves after the adoption of Christianity 19 Treatment of slaves by Romans and barbarians 20 Social grades under the Empire : the tillers of the soil . . .21 The land-owners 21 Duties of the land-owners : the colonial courts ..... 22 Recognition of personal property : growth of commerce ... 22 Britain enjoyed the full benefit of Roman civilisation .... 23 Her loss when the Romans abandoned her 24 A journey in Roman Britain 25 Splendour of a villa in Britain under the Empire .... 26 Culture of its occupants . 29 General sense of security in Roman Britain . ' 29 The dangers from without : the barbarism which was to come . . 3° Roman and other superstitions 32 CONTENTS. PAGE Introduction of Christianity into Britain 3J The superstitions with which it was infected 36 Their wide diffusion 37- Their appearance after the mission of Augustine 38 The crime of Witchcraft and the Church 40 Customs introduced by the Teutonic settlers 41 Setting a price upon human life : the blood- feud 41 Wide diffusion of the custom 42 Stage of human progress in which it exists ...... 43 It was inseparable from Teutonic Conquest 44 It was introduced anew into Britain by the Teutonic invaders . . 45 It survived the re-establishment of Christianity 46 It was associated with the practice of compounding for penances . 47 Distinctions of class in the Criminal Laws 48 Brutality culminating in the punishment of slaves and women . . 51 Primitive Trials ........... 52 The Ordeal j3 Compurgation jj Its demoralising effects jc Its relation to Trial by Jury ^6 Police-system: The Guild compulsory and voluntary: the Peace-Pledge 57 The Tithing and the Hundred j8 Full development of the system under the Danes 60 Its inherent weakness .......... 60 The Guilds and the Compurgators 61 The Guilds and the Assassins 62 Trade-guilds and the towns 64 Importance of the history of Towns in the History of Crime . . 66 Disputed origin of Towns in England 66 Roman names : the Chesters 67 Teutonic names : the Boroughs 70 The origin of the' Roman Chester and of the'Teutonic Borough the same 7 1 Relation of the Town to the Shire . 71 Contrast between the primitive Teuton and the Town-builder . . 73 The Teuton in possession of a coinage 74 The Teuton in possession of walls, bridges, and roads • • ■ 75 Change in his views with regard to land-tenure 76 Land held in common by every primitive tribe 76 The Teutonic Mark and Tribe 77 Stage between tenure in common and tenure in severalty ■ ■ . 11 Common land in England -g Origin of the private land-holder 7g Acquisition by force the first and long the best title to land ... 70 Its connection with the right of private war go Origin of Private Jurisdictions ... ... g2 Their diffusion in town and country . . ■ ■ . . S'l Municipal Jurisdictions g. Feebleness of the higher Jurisdictions g . General view of society in England from the sixth century to the eleventh 85 CONTENTS. PAGE Popular veneration for Alfred ' the Great ' 85 Ferocious spirit in the Laws of Alfred, Canute, and the Confessor, as in the laws of earlier date 86 Persistence of the same general conditions of life through six centuries 87 Partisanship the only bond which held men together .... 88 The Slave and the Churl ....;.... 89 The custom of wife-buying 90 Its nature oi The Church was at first compelled to accept it 91 TJhe Clergy afterwards used their influence to abolish it . . .91 Character of the Clergy 93 Description of the inhabitants of England by Lanfranc ... 94 CHAPTER II. FROM THE NORMAN CONQUEST TO THE THIRD CRUSADE. ENGLAND AT THE END OF THE TWELFTH CENTURY. First effects of the Conquest 96 Continuity of History 97 Punishments before and after the Conquest 97 The Normans and the Englishry 98 Humanity of Lanfranc 100 Lanfranc and the scenes around him 100 Feudalism and the Church 102 Separation of Ecclesiastical and Secular Jurisdictions .... 103 Growth of the Privilege of Clergy 104 Religious and military ferment throughout Europe .... 105 Policy of the Conqueror : Domesday Book 106 The King's Court; the Exchequer ; Fines for Crimes . . . .107 First indications of the Eyre or Circuit 108 Attempts to effect improvements continually thwarted .... 109 Good governmentj^ in the modern sense, impossible .... 109 Henry I. and the Coiners no Anarchy during Stephen's reign ; private Mints in Unification of the Kingdom the traditional policy of the Conqueror's family 113 This policy was distasteful to the Clergy 114 The quarrel of Becket with Henry II. ; the rival Jurisdictions . . ' iS Murder of Becket 117 Plans of legal improvement under Henry II 118 Origin of the Grand Jury 120 Compurgation and the Wager of Law 123 Development of the Jury-system under Henry II. ; the Grand Assise . 124 Partisanship and Perjuries of Jurors 126 Link between the Grand Assise and the later Juries in criminal cases . 127 Attempts to counteract the evils of Partisanship 128 Attempts to secure Uniformity of Procedure 129 VOL. I, a xvi CONTENTS. PAGE General design of the Assise of Clarendon, the Assise of Northampton, and the Inquest of Sheriffs '3° Improved legal Education I33 General aversion to changes in the Law I34 Opposition to the Eyres '35 Meaning and effect of this hostility 136 Position of the Englishry in the rural districts 137 The towns not yet able to exert their influence for good . . -139 General state of Society in the 12th century 140 Crimes prevalent in London 141 • The Court as described by an Archdeacon 142 Venality of Justices, Sheriffs, and other Courtiers 143 Loaded dice 145 Character of the Clergy according to contemporaries .... 146 The Clergy of the two provinces exchange blows at Westminster . 148 Value of Relics 149 Stealing of Relics sanctioned by a Religious House . . . .150 The Clergy and the Poor . . 151 Charity 153 Appearance of Heretics in England 154 Inhuman treatment of them 155 Brigands described as Heretics 156 Source of the prevailing Barbarism ' 157 Position of the Jews in England 157 Scene on the Coronation-day of Richard I . 1 59 Massacre of the Jews in London 160 „ „ at York 161 „ „ at Lynn, Stamford, and Lincoln . . .162 The Crusades according to Romance . . ■ 163 Historically they illustrate the moral condition of Europe . . . 164 Treacheries of the Crusaders 165 Character of Richard Cceur de Lion 167 His popularity 157 Remote advantages of the Crusades . . . ... . . 168 The Age of Chivalryillustrated by the Ordinances made for the Crusaders 168 CHAPTER in. FROM THE THIRD CRUSADE TO THE YEAR BEFORE THE BLACK DEATH. The period exhibits remarkable contrasts 170 The towns become quit of the Murder-fine 171 They obtain other privileges j»2 Their Guilds ; ._, They recover from the effects of the Conquest sooner than the rural districts _ They are in danger of reverting to the old forms of barbarism . '. 175 They begin to be represented in the Legislative Body . . . ! 176 CONTEJS/-TS. xvn PAGE Fusion of opposing principles 178 First effects of town influence 178 Proportion of town population to rural population . . . .179 Relative magnitude of the towns i8i First effects of Coijimerce upon the distribution of the population . 182 Scantiness of the population as a whole 183 Narrow-mindedness among the townsmen and other classes . .183 This was illustrated in the treatment of the Jews 184 Envy excited by them ; their superior knowledge of Commerce . .185 They have various frauds attributed to them i86 The story of the Jew of Bristol 186 Hostility of the Clergy to the Jews . ^ 187 The Clergy desired their expulsion 188 The Abbot and Monks of Westminster and others of the Clergy were in debt to them 189 A contemporary caricature of them 190 The Jews and the ' Pope's money-changers ' 192 The Jews bribe the Justices 192 Their privileges are restricted 193 Absurd accusations against them 194 Two hundred and eighty of them hanged in London . . . -195 Cruel expulsion of the Jews from the kingdom 196 Its advantage to the King and the Clergy 197 Its bearing upon a crime attributed to the Abbot and Monks of West- minster 198 The great robbery at the Royal Treasury 199 Commission of Enquiry .- . . 199 Indictment and trial of the Sacristan, Sub-prior, and Monks . . 200 Conduct of the Monks before and after conviction .... 201 Contrast between the improvements in the Laws and the lawlessness of the people 203 The Ordeal abolished through the influence of the Church . . . 204 The Judicial Duel : an instance 204 The Petty Jury taking the place of the Ordeal, and, in part, of the Duel 206 Indictments and Appeals : Party-swearing 208 Standing mute : the ' prison forte et dure ' 210 Effects of the punishment of mutilation 211 An illustration 212 Gradual substitution of other punishments 213 The Forest Laws 213 Mitigation of them 215 Slow effects of legislation upon the tone of society . . . .216 Provisions for the Conservation of the Peace 218 The Statute of Winchester 220 Changes in the method of administering Justice 221 Origin of Justices of the Peace 223 The Law of Treason 223 Illustration from the case of Piers Gavaston 224 a 2 xviii CONTENTS. Illustration from the cases of the Despensers The punishment for High Treason : the reasons assigned for it Treason and the right to depose a Sovereign Accusations of Treason from corrupt motives Illustration : the Earl, the Friar, and the Spirit Spread of corruption ; attempts to stay it The Ordinance and Oath of the Justices PAGE 226 226 228 228 229 230 CHAPTER .IV. ENGLAND IN THE YEAR BEFORE THE BLACK DEATH. Scene at Dover 232 Sanctuary-men 232 The seamen of the Cinque Ports 233 Journey from Dover to London 234 Arrival in London 235 Scenes in the Markets 237 Public Punishments in the Streets 237 The Highway from London to Westminster ; the Lepers . . . 238 Westminster Abbey : its Law-suits 239 State of the Roads 240 Difficulties of travelling : aspect of the country 241 Dens of Robbers 242 Organised Brigandage 242 Attacks at Fairs and Markets 243 Bristol in the hands of Brigands 243 Plunder taken alike from the King and his subjects .... 244 Murder of the King's Sergeant-at-Arms 245 State of the Marches towards Scotland 246 Crime and the right of private war 246 Acts resembhng Brigandage committed by Knights and by the Clergy 247 They are illustrated by the subsequent Statutes against forcible entry . 249 Close connection of the first barbarous taking of land by force, the ' forcible entry ' in assertion of a right, and open brigandage . . 249 Crimes deliberately committed by Knights and Priors at the head of a military force ' 250 The township of Worcester asserts a jurisdiction against the Prior by force of arms 252 Simple murders distinguished from greater offences .... 253 Comparison of past and present totals 254 The women hardly less brutal than the men 255 Conflicts with the Ministers of Justice : Bloodshed in Court . . 257 Partisanship : Intimidation of prosecutors and suitors .... 257 Armed resistance to the Collectors of Taxes . • 258 Knights errant, brigands, and ' noble savages ' are not incapable of the meaner crimes 2J9 CONTENTS. and other officers Crimes on the border-land between the ' chivalrously ' venial and the unchivalrously mean Dishonesty characteristic of the ' Age of Chivalry ' Commerce at its birth infected by Fraud Intimate connection of Force and Fraud Treachery of Knights and Merchants . Evasion of Duties Importation of False Coin English Manufacturers of False Coin . False charges connected with the Coinage Dishonesty at the Mints Forgery ; counterfeit seals ; false pretences Forged writs and returns in Courts of Law Forgery used as an aid to Brigandage . Forged Pardons Forgery of Exchequer Bills . Mode of raising money upon forged Exchequer Bills Forgeries of Charters in Religious Houses Forgeries committed by Sheriffs . Partiality and general corruption of Sheriffs Juries packed by Sheriffs Corruption in the Court of King's Bench Forgery by Counsel ; taking fees from both parties to a suit Deceptions practised in the Ecclesiastical Courts . Bribery among the Judges : the Chief Justice of England convicted 111 effects of these bad examples .... Reluctance of Juries to convict .... Common Receivers of Felons and Goods Approvers : their usual fate ; the reasons for it Prisoners forced by torture to become Approvers . Conduct of Approvers after making their accusations Prosecution by Appeal ; Impunity of Criminals . Hardships suffered by injured accusers . Facilities for the escape of criminals Advantages to criminals from the imperfect adoption of surnames Readiness with which pardons were granted Pardon for a fraudulent burial Benefit of Clergy Light thrown by the Criminal Records upon the great religious move rnents of the I4tli, isth, and i6th centuries Proceedings upon the claim of Privilege of Clergy The Class to which the Privilege was allowed The Advantages secured by the Privilege .... Jealousies excited by it : Clerks always convicted when tried Unpopularity of the Clergy Forcible entries into Churches : scandalous scenes Open warfare between the secular and ecclesiastical authorities Misapplication of revenues attached to religious houses Familiarity of the Clergy with violence and bloodshed . CONTENTS. PAGE Want of respect among the Clergy for merribers of their own body . . 308 Sacrilege a common offence 3°8 The circumstances which moulded the minds of Wychfife, Chaucer, and the author of 'Piers Plowman's Vision ' 309 Their works, with the Public Records, complete the picture of the Age. 311 The Court : the state of education 312 Effects of the adoption of the English Language by the Court . . 314 The year before the Black Death a representative year ; the Age of Chivalry at its best 3^7 Scenes to be witnessed by the survivors of the Plague .... 319 Object of the present chapter 321 CHAPTER V. FROM THE BLACK DEATH TO THE ACCESSION OF HENRY VII. The social effects of every Great Plague 322 Effects of the Black Death in England 323 The Statute of Labourers 323 The Bond and the Free 323 Sketch of the history of Villenage 324 Improvement in the condition of slaves after the Norman Conquest . 325 The slave becomes an inferior villein 325 The villeins not the only labourers 326 Discontent among the villeins : its causes 327 Growth of a class of free labourers 327 The coming changes accelerated by the Plague 328 They were aceelerated also by religious discontent .... 329 Claim of the villeins to be free 330 Legal aspect of their case 330 The passions of the lower classes inflamed by the poll-tax . . -331 Wat Tyler's rebellion 332 Aims of the rebels 333 London in the hands of the mob : Slaughter of the Lawyers . . 333 Destruction of documents and treasures 334 Brutal orgies of the mob 33; Imitation of public executions : fate of the Archbishop of Canterbury . 336 Immediate effects of the rebellion 337 Progress of religious discontent ' . . . 338 Charges against William of Wykeham and other Bishops . ^, . 338 Tone of morals among public men 330 Appropriations ; the Clergy, the Tithes, and the Poor .... 341 Agitation against the Clergy ; popular Songs 342 The Clergy denounce the crime of heresy : Policy of Henry IV. and Henry V 343 The writ for ' the burning of a heretic ' 344 Execution of Sautre 344 Arrest of Lollards throughout the kingdom 345 Sir John Oldcastle 346 CONTENTS. PAGE Oldcastle's indictment as enrolled in the King's Bench : the erasure . 346 His ovitlawry ,.7 The sentence pronounced upon him 347 Enrolment of the proceedings on the Rolls of Parliament : the dis- crepancies 34g Forgery or carelessness ? 348 Oldcastle's death not to be attributed to the clergy alone . . • 3So Aims of Oldcastle, Blake, and Acton 351 Alliance of the clergy with the upper classes of the laity . . • 3Si Charges of witchcraft : study pronounced disgraceful to lay-people . 352 Connection between charges of heresy and charges of witchcraft . . 353 The Maid of Orleans 354 Search for sorcerers in England 355 The charge of witchcraft as a pohtical engine : the Duchess of Gloucester 356 Her trial 356 Her condemnation and penance 357 The Duchess of Bedford and her daughter, Queen Elizabeth, suspected of witchcraft 358 Charge of witchcraft against Thomas Burdett 360 The Duke of Clarence charged with having imputed witchcraft to Ed- ward IV. himself. 361 Accusation of witchcraft against Jane Shore 362 A strange coincidence : introduction of printing at a time when charges of witchcraft became most prominent 363 Attempt to explain the contrast : the towns and the country . . . 363 Degree of progress indicated by the invention of printing . . . 364 Improvements in the manufacture of paper 365 Paper a substitute for parchment : increase of correspondence . . 366 Interchange of uses between the pen and the seal .... 367 Writing, printing, sealing, and forgery 368 The improvement of paper and the invention of printing due to the spirit of commerce 369 The commercial spirit, and the spirit of private war .... 370 Country robbers and town thieves 371 The Knight's complaints against the townsman 37 1 The social pretensions of town and country 373 All mental culture traced to the towns- 373 The towns and the fugitive villeins 376 The Trade Guilds : position of a guildsman 377 Employers and employed : their early relations 378 New grouping of classes 380 The religious or social guilds : their relation to earlier and later times 381 Recapitulation : progress made in the fifteenth century . . . 383 Obstructions to progress : evasion of the Mortmain Laws by the clergy 384 Incongruous union of the Roman Law with the Feudal Land-laws . 384 Absence of improvement in legal procedure ; the jurors still witnesses ; perjuries 3^6 Treatment of the accused : the 'peine forte et dure' 3^7 xxii CONTENTS. PAGE Continued lawlessness : remarkable sentiment of Chief Justice For- tescue 388 The ' Great Hearts ' of the English : Chivalry in its best aspect . . 389 The ' Battle of Treason ' described by a Royal Armourer . . . 389 Single Combat and the spirit of private war 392 Single Combat might have been useful in national disputes ; challenge of Richard II. to the French King 393 Private war and forcible entry : Statute against forcible entry . . 394 The Statute ineffectual : private jurisdiction 395 Statutes against retainers and liveries also ineffectual .... 396 The force of ancient custom and the force of material progress evenly balanced ............ 397 Charges of ' Scandalum Magnatum ' associated with the growth of a new class 398 Case of Sibille and the Earl of Oxford 399 Case of Cavendish and Michael de la Pole, the Chancellor . . . 399 Fabrication of false charges : case of Ferriers and the beggar . . 400 Charge against English Knights of surrendering Fortresses for bribes. 401 The cry of ' We are betrayed ' 402 Charges of corruption against William de la Pole 402 His fate 403 Absence of improvement in the tone of rival parties ; atrocious deeds of bloodshed 404 Murder of a Duke of Gloucester . • 404 Attainder after death 406 Similar fate of another Duke of Gloucester 406 Effect of surrounding circumstances upon the character : Richard II. an illustration 407 Effects of secret crimes : personators of murdered kings . . . 408 Richard III. and 'Chivalry' 409 ' Chivalry ' and the condition of women 409 The Mistresses of Kings : Alice Perers 410 Mothers and Daughters : chastisement of a young lady . . .411 The only improvement in the condition of women was in the towns . 41 1 The towns were affected by the lawlessness of the country . . . 412 A brawl in Westminster Hall 412 Attack on a Lord sitting in the Star Chamber 413 Armed Retainers riding into the towns to impede the course of Justice 413 Mutilation still a common "offence 414 General want of tenderness 414 Brutal conduct of soldiers bound for foreign service . . . .415 Horrors of the Civil Wars 41c Less security and less civilisation in England at the accession of Henry VII. than in Britain before the Romans departed .... 417 But there was hope of a higher civilisation through free labour . .418 Prospect of a more settled government 410 The resistance of ignorance and brutality still to be stubborn and long 419 General sketch of society at the end of the Middle Ages . . . 420 The transition into the modern state of society remains to be treated , 421 XXIU APPENDIX. REFERENCES AND NOTES. PAGE General Remarks 423 REFERENCES AND NOTES TO CHAPTER I. Evidence for a description of the appearance of various criminals . 425 Evidence of ancient British customs : estimate of its value . . . 425 Note upon Roman punishments in the arena 426 Note on the use made of the Theodosian Code in the Text . . . 426 Reference concerning • Lsesa Majestas/ or High Treason . . . 426 References concerning the use of the more cruel punishments by the Romans 426 Laws showing the gradation of punishments under the Empire ; . 426 Evidence concerning the use of Torture by Romans and English . . 427 Merciful provisions in Roman Laws 427 Roman laws to secure liberty of the person 427 Roman laws to protect the provincials 427 Laws in favour of the wives and children of criminals .... 428 Laws concerning slaves 428 Evidence of the Theodosian Code concerning the owners and culti- vators of land, and concerning the constitution of Colonial Courts . 428 Proof that these Courts existed in Britain 429 Roman companies or guilds : proof that they existed in Britain . . 429 Evidence for the description of a journey in Roman Britain . . 429 Evidence for the description of a villa in Roman Britain . . . 430 Note on the condition of women under the Empire .... 430 Note on the position of the Roman Governor in Britain . . .431 Note (with reference) on the imperial edict against teaching barbarians to build ships 431 Note on the diffusion of superstitions 431 Evidence concerning superstitions from Horace, Tacitus, Pliny, and the Theodosian Code 432 Evidence from the early Fathers of the superstitions with which Chris- tianity must have been infected when first introduced into Britain . 432 Note on the statement that it is uncertain what superstitions were intro- duced by the Teutonic invaders 433 Evidence of the superstitions in England after the mission of Augus- tine 433 Note on the orthography of pre-Norman names 434 Evidence of the early superstitions in England (continued) . . . 434 Evidence of ancient German manners and customs .... 436 xxiv CONTENTS. PAGE Evidence that the blood-feud was common to various races . . . 436 Evidence that it was revived and continued by Teutonic conquest . 437 Note on the first appearance of England in history .... 437 References concerning the commutation of penances .... 437 References to laws showing the distinction between freemen and slaves in England 437 References to laws concerning the punishment of slaves and freemen in England 437 References concerning the Ordeal 438 References concerning compurgation, and its relation to trial by jury . 438 References concerning the Guild as a part of the Police-system ; . . 438 References concerning the Guild, the Tithing, the Hundred, and the Manor 439 References concerning voluntary Guilds 440 References concerning assassination 440 Evidence of Domesday concerning Guilds of Burgesses . . . 440 Note on the names and origin of towns and shires .... 440 Evidence of the ancient German mode of life 441 References concerning the use of coin by the Teutonic invaders . . 441 Note on the use of roads and walls by the Teutonic invaders . . 441 Note and references concerning Teutonic and primitive land-tenure, and the early tenure of land in England 441 Note and references concerning the 'Mark' 442 Note on private jurisdictions in the country 442 References to Domesday, &c., concerning private jurisdictions in towns 442 Note on municipal jurisdictions ........ 443 Note (with references) on the moots or courts in existence before the Conquest, and on the proceedings in them 444 Note on the general character of the pre-Norman laws .... 444 Note on the persistence of the same general conditions of life . . 445 Note on slavery in England . . . . . . . . . 445 Note and references concerning the practice of wife-buying . . . 445 Note on the character of the clergy 446 Note on watch and ward 446 ■ Reference to Lanfranc's description of England, with evidence in con- firmation 446 REFERENCES AND NOTES TO CHAPTER H. Note on the use of the word ' Englishry ' in the text .... 447 Reference to Henry of Huntingdon concerning native views of the Nor- man Conquest 447 References concerning the law of murder immediately after the Con- quest 447 References concerning the sack of a monastery by a Bishop . . 447. Reference to the letter of Gregory VII. on wife-buying . . . . 447 Reference concerning mutilation under the Conqueror .... 448 Note on the introduction of trial by combat 448 Note on the character of Lanfranc 448 CONTENTS. PAGE Note on the introduction of feudalism into England .... 448 Reference concerning Gregory's encroachments 449 Reference to the law separating ecclesiastical from secular jurisdiction 449 Note on Domesday Book and the Great Rolls of the Exchequer . . 449 References concerning the punishment of coiners 449 References concerning events in Stephen's reign 449 References concerning the murder of Becket and the events which preceded it 449 References to Public Records, Glanville, &c., concerning legal changes under Henry 11., and their relation to previous and subsequent laws, and to trial by jury ' 450 References to records concerning the Wager of Law .... 450 Note on the spelling, &c., of Latin documents 451 Note on the study of the Roman Law in England .... 452 Note (with references to the Great Rolls of the Exchequer, &c.) upon the early operation of the system of Eyres 452 Note (with references to the Great Rolls of the Exchequer, the ' Dia- logus de Scaccario,' Glanville, Bracton, the Statutes, &c.) concern- ing the end of the distinction between Norman and Englishman . 453 References concerning the crimes in London and other towns in the twelfth century 456 References concerning the Court of Henry II 456 References concerning the character of the clergy in the twelfth cen- tury 456 References concerning the clerical brawl when the Primacy was in dispute 456 References concerning the value and stealing of reUcs .... 456 Note and references to Records, &c., concerning the support of the sick and poor in the twelfth century . . ^. . ■ . . . 457 Note and references concerning the doctrines and treatment of the first heretics.in England 457 References concerning the Jews in England in the twelfth century . 457 References concerning the coronation of Richard 1. and the subsequent massacres of the Jews 4S7 References concerning the first two Crusades and the morals of the Crusaders 45^ References concerning the character of Richard I., and the Ordinances for the punishment of Crusaders in the third Crusade . . .458 REFERENCES AND NOTES TO CHAPTER III. References to Charters, &c., concerning the privileges acquired by the Towns during the first two centuries after the Conquest ; freedom from the murder-fine, &c 4S9 Note and references to Records, Glanville, &c., concerning the Guilds or Communes of towns at the end of the twelfth century and begin- ning of the thirteenth 46° References to Charters, &c., concerning freedom acquired by fugitive xxvi CONTENTS. PAGE villeins after a year's sojourn in a chartered town, and concerning burgage-tenure 461 References to Charters concerning the growth of the representative principle in towns 462 References to Records, &c., concerning early English Commerce after the Conquest 4^2 Reference to a Roll showing the distribution of population under Edward II 462 References to Records, &c., showing the position of the Jews before Pandulf became Legate 463 References to Records showing that the Clergy were in debt to the Jews, and desired their expulsion 463 References to Records, in explanation of a caricature of Jews, A.D. 1233 (frontispiece) 464 References concerning the ' Pope's Money-changers ' . . . . 464 References concerning bribery of Justices by Jews .... 464 References showing a change in the position of the Jews . . . 464 Statute of the Jewry, &c 464 References concerning charges against the Jews, executions, &c. . 464 Note and references to Records concerning the expulsion of the Jews . 465 References to Records concerning the appropriation of the Jews' goods 465 Note and references concerning the value of 100,000/. (stolen from the Royal Treasury under Edward I.) 466 Note and references to Records, &c., concerning the proceedings after the Great Robbery at the Royal Treasury 466 References concerning the later Ordeal and its abolition . . . 467 Reference to a Record concerning the Trial by Battle .... 467 References concerning the growth of the Petty Jury after the abolition of Ordeal 467 References to Records, &c., concerning the ' prison forte et dure,' and standing mute 468 References to Records concerning mutilation, &c. (Edward I. — Edward III.) 468 References concerning the Forest Laws 469 References concerning the aims and privileges of the Barons . . 469 References concerning the ' Conservation of the Peace,' the Division of the Courts, the Justices ofTrailbaston, the origin of Justices of the Peace, &c. 469 Reference to the Statute of Treasons 470 References to Records, &c., concerning the cases of Gavaston and the Despensers 470 Reference to an early Record concerning the punishment for High Treason 470 References to Records, &c., concerning the deposition and murder of Edward II. 471 Reference to a Record concerning ' the Earl, the Friar, and the Spirit ' 471 References to Records, &c., concerning corruption and attempts to check it 471 CONTENTS. xxvii REFERENCES AND NOTES TO CHAPTER IV. PAGE Evidence concerning the scene at Dover 472 Evidence from Records concerning Sanctuary and Abjuration of the Realm 472 References to Records, &c., concerning the seamen of the Cinque Ports 473 References to Records concerning a journey from Dover to London in the fourteenth century 473 References concerning scenes in London 473 References concerning the road from London to Westminster, West- minster Abbey, and scenes there. . , 473 References to Records showing the state of the roads, &c. . . . 473 References to Records concerning Dens of Robbers .... 474 References to Records concerning Brigandage, the capture of Bristol, the want of respect for royal authority, &c 474 References to Records concerning the state of the Marches, &c. . .475 References concerning the acts of private war, brigandage, &c., com- mitted by townsmen, knights, and clergy 475 References to Records concerning the proportion of homicides to popu- lation in 1348 476 References to Records concerning the character and position of women in 1348 476 References to Records concerning attacks upon Justices, and brawls in Court 477 References to Records concerning intimidation of suitors, resistance to tax-collectors, &c 477 References to Records concerning forcible marriage and abduction . 477 References to Records concerning peculation by the Master of the Horse and other knights 477 References to Records concerning the treachery of merchants and knights 477 References to Records concerning evasion of duties, the importation of false coin, and the manufacture of it in England .... 478 References to Records concerning false accusations of importing base coin, and concerning the Mints 478 References to Records concerning counterfeit seals, forged letters, writs, returns, &c 478 References to Records concerning forgery as an aid to brigandage . 478 forged pardons 479 the forgery of Exchequer Bills 479 the forgeries of Charters 479 — forgery by Sheriffs, packing of juries, &c 479 corruption in the Court of King's Bench, &c 480 forgery and double-dealing by counsel 480 an Archdeacon's Court 480 ^^ the acceptance of bribes by Chief Justice Thorpe, &c. . . 480 the reluctance of jurors to convict 480 receivers 48 1 Approvers and their Appeals 481 other Appeals 481 xxviii CONTENTS. PAGE References to Records concerning the difficulty of identification of names 481 pardons, false and genuine 482 Note and references concerning Benefit of Clergy, the manner of claim- ing it, and its effects 482 References to Records concerning the conviction of clerks, and the un- popularity of the clergy ......... 483 References to Records concerning forcible entries upon Rectories, &c. 484 the Excommunication of Sheriffs' Officers .... 484 the mismanagement of charities, &c 484 homicide by parsons 484 fugitive monks .......... 484 Sacrilege 485 References to Chaucer and the ' Vision ' 485 References to Records concerning the state of Education in the four- teenth century 485 Note and evidence concerning the Black Death and its importance . 485 REFERENCES AND NOTES TO CHAPTER V. Reference to the Statute of Labourers ....... 486 Evidence for the history of slavery and villeinage : a deed of sale in full 486 References to Records showing the beginnings of free labour . . 487 — concei'ning the doctrine of equality 487 — to Records illustrating the claim of the villeins to be free . . 487 — to Records, Chronicles, Songs, &c., for the details of Wat Tyler's rebellion 487 Note on ' Impeachment,' and references to Records concerning the charges against William of Wykeham, the Bishop of Norwich, &c. . 488 References to Records concerning appropriations, misapplication of tithes, and general dissatisfaction with the Clergy .... 488 References to Statutes, &c., showing the policy of Henry IV. and Henry V 489 References concerning the Writ and Statute for burning heretics . . 489 the execution of Sautre, and persecution of other heretics . . 489 — to Records of the proceedings against Oldcastle, Blake, and Acton . 490 The Indictment of Oldcastle, Blake, and Acton, copied verbatim from the ' Coram Rege ' Roll, and compared with the transcript exhibited in Parliament 490 Note and reference concerning the ' unchivalrousness ' of LoUardism . 493 References to Records, &c., concerning the Maid of Orleans, and the search for Witches under Henry IV. and Henry VI 493 — the Trial and Penance of the Duchess of Gloucester . . 494 the imputations against the Duchess of Bedford and her daughter 4^4 References to Records, &c., concerning Burdett and Clarence . . 494 — Jane Shore 454 Note and references concerning the introduction of printing, its relation to ancient seals, the growth of paper-manufacture, &c. , '. . 494 CONTENTS. PAGE References concerning the ancient use of seal and pen . . . 495 Printing andCommerce in the reign of Edward IV. ; Caxton, the Poles, &c 496 Statutes showing the frauds practised in the fifteenth century . . 496 Note on town life and country life 496 References concerning trade guilds, the relations of capital and labour, and the progress of commerce in the fifteenth century . . . 497 Records concerning the social or religious guilds 498 Statutes relating to ' Uses ' 498 References concerning legal procedure, the ' peine forte et dure,' &c., in the fifteenth century 498 Treatise on the ' Battle of Treason ' 499 Note on the challenge of Richard II. to the French King . . . 499 References concerning forcible entry and private jurisdiction in the reign of Richard II 499 Statutes and Records concerning liveries, retainers, &c. . . . 499 Statutes and Records concerning ' Scandalum Magnatum ' . . . 499 Records concerning corrupt surrender of fortresses, &c. . . . 500 Evidence of murders of Dukes of Gloucester 500 References to Records concerning the deposition of Richard II. and the false personation of kings after death ...... 500 References concerning the position of women in the fifteenth century . 501 Record (in full) of a brawl in Westminster Hall 5°' References to Records concerning armed forces in law courts, mutila- tions, misdeeds of soldiers, &c 5°2 References concerning the Wars of the Roses S°2 Note on the value of statements in the preambles of Statutes . . S°3 Evidence of the state of society towards the end of the fifteenth century .• S°3 Errata. Page 23 5 lines from top, dele the second ' to be' 31 12 „ bottom, ^^^ In ?-«(/ To 173 5 ,, ,, ffl/?^?- ' as ' insert a comma 192 14 ,, top, yo?" objects j-effla? object 210 12 ,, bottom, «/?«-' for ' insert a comma 211 7 ,, ,, after Tliough dele it may be said that 213 6 ,, ,, after ss, insert 3. 226 14 ,, top, a/fe;- is (/i?ife the comma 252 6 ,, bottom, for and laid them waste read which they laid waste 262 IS ,, ,, (y?«- ' that ' insert a comma 301 7 ,, ,, insert the comma a/fer ' that ' instead of ^^o^« 303 7 ,, ,, a/?£?- ' relatives ' rfif/i? the comma 346 second side-note, for erasures read erasure 360 last line, after that dde the comma 429 lines 20 and 23 from bottom, for the S in ' Signiferorum ' read L 430 16 lines from top, after comparison dele the comma 441 third side note, for Notes read Note 445 10 lines from top, for Lives read Life 490 6 ,, ,, after relate insert to 495 22 , , , , after remains dele the comma A HISTORY OF CRIME IN ENGLAND. CHAPTER I. INTRODUCTORY. FROM THE ROMAN INVASION TO THE NORMAN CONQUEST. WHAT is Crime ? Whence come the Criminals,? Have we inherited from the darker ages a malady which is gradually becoming extinct, or The scope, . . 1 1 . . 1 ., the sources, are we ourselves mdulgmg m new and more evil and the diffi- habits, which will corrupt still further the life- work. blood of posterity ? Is it true that where wealth accu- mulates men decay, that our forefathers were better men than we, and that, as we strain our eyes back into the past, we can see in history that golden age of which poets in all countries have prattled ? Savages who were noble, knights who were blameless in their lives and fearless in death, kings who lived only for their people, peoples contented with their rulers, plenty, happiness, and wide- spread virtue were, according to some philosophers, the blessings which the world once enjoyed, in spite • even of the fall of Adam, VOL. I. B 2 THE CA USES OF CRIME [chap. i. To such a picture as this our prisons and dockyards, filled by an ever-flowing stream of new offenders, or of criminals who are whirled back by successive eddies again and again to their former place, present a hideous contrast. There may be seen the deliberate murderer, with steel- blue eye and square jaw and set lips, patient as a beast of prey and not less cruel, marking with calmly vindic- tive glance all who come to see him in his cage, biding the time for his release, resolved that his next spring shall be at once more stealthy and more deadly than his last. There, With feeble frame and puny head, is he who sheds blood he knows not why, who is cursed with too much cunning to escape punishment as an idiot, blessed with too little sense to act discreetly. There is the thief by profession, with ears projecting outwards as though to catch the first sound of the pursuing thief-taker, and with unquiet eyes, which seem to dread detection even in the act of looking. There are the evil-doers of a higher class — each differing from his fellows because they have reached the same goal by somewhat different paths. But conspicuous among them all is the perjurer, from his resemblance to convicts of another stamp. With an unstable mien, like that of the habitual pilferer, he often has a bolder and more shameless air. His is often the mas- sive neck, broad behind as the head itself, which is com- mon to the most brutal among homicides, and which indicates a vigorous heart and a full flow of blood. He needs all his strength, even though destitute of feeling, to stand unabashed and be ever ready with a new lie when lie after lie has been detected and exposed. He may be observed only too often in every law-court, drawing himself together, with a characteristic but almost imperceptible gesture, for a new effort against truth as CHAP. I.J TO BE SOUGHT IN HISTORY. 3 often as some unexpected shaft has grazed his impene- trable hide. Sooner or later he finds his way to gaol, which, however, he may enter for an offence of some other kind than perjury, and so become undistinguishable in the great mass of iniquity. Such characters as these, and many others not unlike them, are unhappily within the every-day experience of the gaol-chaplain and the warder. They are often described as a reproach to our civilisation, and have baffled again and again the ingenuity of philanthropists. But can civilisation with justice be held wholly responsible for all that exists side by side with it ? Is civilisation in any respect a disgrace to the civilised ? Has its progress been only in a vicious circle ? Is its end to be suicide ? To such questions there is no answer except in history — not the history of a decade or a century, but the complete history of our nation. The causes must be studied in their operation through many long ages. To seek for them within the narrow limits of a modern period would be as vain as to judge whether the tide is ebbing or flowing from the marks of only two consecutive waves on the sea-shore. In that truth lies the justification (and with it some of the greatest difficulties) of the present undertaking. In the attempt to write a History of Crime, a field is entered which has never previously been explored. The history of civilisation has been written again and again ; the manners and customs of past ages have been depicted by authors whose mastery of style compensated, so far as compensation was possible, for paucity of materials ; the changes in our laws, the development of our literature, the increase of our arts, and the growth of our science, have been narrated in almost every detail and discussed from almost every point of view. History has long B 2 4 THE HISTORY OF CRIME A PART [chap. i. ceased to be a bare chronicle of battles lost and won, of the rise and fall of dynasties, and of the Intrigues of statesmen. But in the reaction against that useless method of recalling the past which exalted a date as a thing to be remembered for its own sake, and appraised a man's intellect by the number of disconnected facts with which it was stored, there has arisen a danger of erring in an opposite direction. The history which states the facts and omits the causes has been in some degree supplanted by the history which generalises upon causes where the facts are insufficient. Civilisation is a great whole made up of so many different parts that unless workers can be found who will be content to inves- tigate its constituent elements with some minuteness its progress can never be thoroughly understood. It is surely a paradox that there have long been many ' Histories of Civilisation,' and not one ' History of Crime.' The different opinions entertained at different times of similar actions, the varying amount of respect shown for human life and for property, the effects of ignorance and superstition upon the nature and the num- ber of offences and upon the laws intended for their repres- sion, the relation between political convulsions and social disorganisation belong essentially to the history of civilisa- tion. These and a variety of minor details connected with the history of crime have hitherto been either passed over in silence, or dismissed in a few dogmatic sentences, which might be true by chance, but were not founded on certain information. An Oates has often been held up to execration as a disgrace to humanity, a Bacon alter- nately described as sinned against or sinning ; but none have set themselves to enquire what causes in the far-off past had aided in the development of a Bacon or an CHAP. I.] OF THE HISTORY OF CIVILISATION. 5 Gates, how far they have now been modified, and whether it is possible that we may ourselves transmit any of them to our descendants. We congratulate ourselves, not without good cause, upon improvements in the administration of justice. The integrity of our judges has long been so far above suspicion that we have almost ceased, for want of a con- trast, to realise the value of a Bench without reproach, or the miseries of a country in which the interpreters of the law have lost the confidence of the people. It is only by a careful study of the past that we can know how im- measurably better, in this respect at least, is our condition than that of our forefathers. It is only by comparison of the past with the present that we can discern what grounds we have for hope in the future. If Crime has received but little attention, even in his- tories of civilisation, it is probably because historians were not aware of the existence of sufficient materials to illustrate the subject. The subject could hardly have been considered either unimportant or uninteresting in itself. The means of effecting a comparison between one age and another, in their criminal and social aspects, cannot be found in sufficient abundance in printed books. Crabbed manuscripts, often dirt-stained and half oblite- rated by damp, written in a hand and in a language with which the classical scholar is not familiar, must be labo: riously read by him who would fill up the gaps in the story of our English life. To omit this process is to be, in a great measure, at the mercy of mediaeval chroniclers, who narrated that which seemed strange to them and passed over that which was familiar, and which is, for the practical purposes of our own time, best worth knowing. Records of inestimable value have, indeed^ been pub- 6 DIFFICULTY OF THE TASK. [chap. i. lished in more than one collection, in which learning and industry are seen to be combined with discrimination. But the earlier selections were made when the true functions of history were little understood ; and though those of later date display great judgment in the attempt to supply what was previously omitted, they are neces- sarily imperfect, because mere extracts cannot be other- wise. To depend solely upon such compilations, even when most excellent, is to adopt, unwittingly perhaps, the historical views of the compilers, whose professed object was not to suggest new subjects for history, but to illustrate history in the sense in which it had previously been understood. Thus, as the hill country often remains unsubdued when the plains yield to a conqueror, so the province which we are now about to enter has been without an owner in literature, because it has been exces- sively difficult of access. But, like the Alps, it abounds in rich pastures, and offers scenes not less picturesque than the deeds of great warriors, and the marriages and progresses of kings and queens. There is another consideration which might well deter an author from undertaking so difficult a theme. He is almost certain to incur the imputation of presumption. It is impossible even to sketch the plan of such a work without collateral study of a very wide range, for crimes can never be exhibited in their true light without some knowledge of the surrounding social conditions. But in proportion as the design is comprehensive the chances of error increase, and the writer must sometimes appear in an unfavourable light to those who are better informed on some particular point upon which his scheme has compelled him to touch. Perhaps, however, some in- dulgence may be shown to one who freely admits that CHAP. I.] ORIGIN OF OUR CRIMINAL LAW. 7 mistakes are inevitable, and who asks that what is at least honestly done may be leniently judged. Of the customs which prevailed in Britain before it fell under the dominion of the Romans we have but little evidence, and that little of a not very trust- teutonic worthy character. To those who believe that the crim"na/ ""^ earlier population was extirpated by the barba- ^^' rous tribes which succeeded the Romans as masters of the soil, there will appear to be no cause for regret that the an- nals of an extinct race have perished — if, indeed, they ever existed. Nor, for the purposes of this history, need the loss be very deeply deplored by those who hold a con- trary opinion. There is no doubt that the settlers who crossed the German Ocean, and gave the name of Eng- land to Southern Britain, brought with them certain customs which, with little modification, constituted for itiany centuries the criminal law of the country. Muni- cipal institutions and the tenure of land may, perhaps, present more difficulties to the historian, but it seems impossible that the rules for detecting and punishing crime which the Normans found in England, and from which a portion of our modern law has painfully emerged, can have come to us from any but a Teutonic source. There may, perhaps, after this admission, appear no need to look beyond the Low German invasion of our island for the history of its crime and of its civi- Advantage of ■' looking be- lisation. Least of all may any such need be yondtheTeu- ^ ^ tonic Inva- thought to exist when the further admission is sion. made that Race cannot, in modern times, be satisfactorily weighed as one of the determining causes of crime in this country. But as the subsequent history will hold equally good whether we are or are not mainly of Teu- 8 LESSON TO BE LEARNT [chap. i. tonic blood, and as our descent is at least a controverted point, it may be excusable, if not absolutely essential, to relate a few events and to describe a few customs which seem to repeat themselves in later times, and which, if they prove no more, prove how easily similar passions may be stirred by similar circumstances. It is, indeed, unnecessary to make any excuse for in- troducing a comparison of Roman culture _with the bar- Generai view barism which preceded it and with the barba- conquestand fism which afterwards almost annihilated it. If Roman Cul- ture, it be true that the same causes produce the same effects under the same conditions, there is a lesson to be learned from the rise and fall of Rome — the most im- pressive lesson, perhaps, which is taught anywhere in history. Rome did her best to civilise her empire when conquered, and it would be well if all conquering nations ■could boast that they had succeeded as well as she. But her first contact with all tribes was made known to them by the sharp edge of her sword, and recorded on their soil in the burial-mounds of their bravest sons. Could the whole world have been united under her tolerant sway, the whole world might have become like herself, and the progress of mankind would not have been retarded when the sceptre fell from her grasp. But with every new conquest she incurred a new danger ; for what she first asserted was not her superiority in mind, but her superiority in brute force. Those who had been last brought under her yoke were always her most bitter enemies, because they had lost independence, and did not yet perceive how much they might gain in exchange. As her frontier was extended the circle of hostile barbarians grew larger, her own means of defence less available. The first art which she taught her new sub- CHAP. I.J FROM ROMAN CONQUEST. ' 9 jects was the art of war, and they, in turn, taught it to their comrades beyond the border. Could their education have been completed, Rome might never have fallen, Christianity might long ago have been, in one form or other, the religion of every quarter of the globe, the inventions of the eighteenth and nineteenth centuries might have been anticipated in the seventh or eighth, and the nineteenth century itself might have been a happier time for mankind than mankind can even hope to enjoy in the thirtieth. It was because she had risen by her legions that her legions caused her, as she de- served, to fall. It was because she was a generous mistress that she became, as she deserved to become, immortal. To those whose chief thoughts were of blood and iron, she appeared only as the fortunate, but hateful, possessor of troops with iron which was a little better tem- pered, and with blood which was a little less easily to be shed than their own. By those who had learnt from her how much she had to bestow, she was regarded with pride as a part of themselves. Thus did she illustrate the truism, often repeated, and nearly always forgotten, that the empire of the intellect is higher than the empire of the strong hand. Thus did she show, as she fell, what is not less worth remembering, that the acquisitions made in "the course of human progress are always in jeopardy so long as there is any section of humanity cut off from the enjoyment of them. Men must advance in a body, or those who lag behind will drag back those who are pushing to the front. Never was this great principle more terribly illustrated, never was the true origin of crime more conspicuously brought to view, than when Roman Britain became the prey of Teutonic hordes. When we enquire what was the condition of those i<3 ALLEGED PUNLSHMENTS BY FLRE [chap. i. Britons whom the Romans conquered we find no sources of information except some scanty notices by Roman It is uncertain ^uthors, and eveu those notices are not always ronditTon ?/ consistent one with the other. The absence of t^" Roman "^^ native records, however, goes far to show, that invasion. ^j^^ civilisation introduced from Rome was a great advance upon any which had previously been developed in Britain ; and there cannot be a doubt that Britain gained great benefits when she became a portion of the Roman Empire. It would be useless to discuss the manners and customs of the ancient Britons, except in those points which have a direct connection with the subject of the present history. But eighteen centuries ago the civilised world believed that there was in the far West of Europe a priesthood which exacted the penalty of death by burning, and as the exaction of the same penalty was sanctioned by another priesthood in another age, the belief is worthy of mention though it may not be unhesitatingly accepted as truth. Of one mode of punishment inflicted by the priests of ancient Gaul and Britain there is an account, which was AUe ed un- current in Rome, but which may be true or himanlacri^ f^lse, Hkc Other travellers' tales. It was held, fhe Rom^ we are told, in those countries, as elsewhere, occupation. ^^^ ^^ Sacrifice of human beings was pleasant to the powers which ruled the universe, that the life of one human being could be given as the ransom for the life and welfare of another, and that the wrath of the gods could always be appeased, if not by one life, by many. This belief was shared by other tribes in every part of the ancient world ; but by them it was supposed that the most acceptable offering was a life only just matured and as yet unsullied by crime. In Gaul and CHAP. I.] BEFORE THE ROMAN INVASION. 1 1 Britain, if we may believe the story which has been handed down to us, it was in the death of the criminal that the gods were thought to take the greatest delight. Elsewhere, in primitive times, it became a common custom to regard virginity as a type of sanctity and purity, and to sacrifice virgins to offended gods. In Gaul and Britain it was taught that the gods were made angry by crime, and relented only when the criminal had expiated his offence. There Iphigenia could never have raised that piteous wail, in which she bemoans her young life cut short for no fault of her own, the loss of all that woman holds most dear, the doom that denied her a husband and children. Had the gods demanded the sacrifice of only one human being, and had there been only one criminal, that criminal would have been selected, and the innocent maiden would have been spared. The Gallic and British method of sacrificing criminals as described by the Roman author, is remarkable not only as an evidence of the sternness with which crime was said to be repressed by a priesthood, but also from the resemblance which it bears to the punishment inflicted on traitresses in England as late as the eighteenth cen- tury. • The offenders were thrown into cages of wicker- work, made in the form of some well-known idol, and large enough to hold many human beings at once. Wood was heaped beneath and around them, and when all was ready the pile was kindled. The flames played about the fragile prison, and shot their forked tongues ever further and further into the mass of the writhing and shrieking victims. The semblance of the god was Soon lost to view, but not before the crowd around had, as it seemed, seen the god himself deal death to the wrong-doers in its most appalling form. Then , came one 12 ROMAN PUNISHMENTS. [chap. i. great blaze of the pile and the cage and the wretches who had been within it ; and when that died out justice was satisfied, and the gods were content for a time. Had such scenes never been enacted in Smithfield, had women not been burnt in England a century and a half ago, the story of the Roman might be more easily dis- believed. Unhappily the similar horrors of a later time rest on evidence which is beyond all dispute. If the Gauls and Britons were guilty of inflicting death by torture, the Romans appear at first sight to gain, in Roman pun- that respect, little by comparison. They not only ishments in . . . . . the Arena, bumed Christians and slaves before Christianity was accepted in high places, but they made the exhibition of criminals battling with wild beasts in the arena one of the most prominent institutions of the Empire. To them, and to the inhabitants of their provinces, the death-pangs of the condemned, or, when none were condemned, of professional gladiators, became as familiar as the bull- fight is to the Spaniard, or as horse-races are to our- selves. While the baths were to the men what the clubs are to men of the nineteenth century, the amphitheatre was the public meeting-place for both sexes — the park, the opera-house, and the race-course in one. Beauties would bet sportively upon the issue of the struggle — eager for the death which would prove their judgment in the right. Sometimes the combat would be merely one of gladiator against gladiator ; and so familiar was the Roman public with blood that there was an established signal — a mere motion of the thumb — by which the popular opinion bade the victor put the vanquished to death. A blow, perhaps a groan, a fresh layer of sand, a murmur of voices, such as we hear between the acts of a comedy, were the only indications that a life had passed away. CHAP, i.j ROMAN PUNISHMENTS. 13 When so small a value was set upon human blood within the arena, it may seem hardly possible that homi- cide without could be regarded as one of the vaiue set greatest crimes. Yet the suspicion is not fully Ey^r""" justified by other facts, nor by Roman laws. '^°'"'"''' There have been handed down no statistics of the amount of crime committed throughout the Roman Empire, still less of its proportion to the population. The satirists, as many other satirists have done, mourn bitterly over the corruptions of the imperial city, over its murders, and its robberies, over the deceptions practised on the unwary, and the infidelities of married life. But there is little to be gathered from these vague declamations, except the fact that murder was regarded by certain ancient writers in Rome with almost as much horror as by ourselves in England at the present time. The worst that can be said of the Roman criminal law, as it existed while Britain was Roman, is that it sanc- tioned torture for the purpose of extracting ^he dark side information, and the punishments of fire and cri^nai""^" of the arena for those offences which it pro- nounced most heinous, and that, in common with some barbarous laws, by which it was superseded, it magnified the offence in proportion to the littleness of the offenders. That which was almost venial in a man of high rank was a crime which brought terrible retribution upon a slave. Such distinctions are no more than an indication that authority has been won at the point of the sword, and that the conqueror belongs to a caste different from that of the conquered. But in this respect Rome may well bear comparison with the conquering nations which had preceded her and with many of those which followed her. She accepted that slavery which she found as an existing 14 ORIGIN OF CRUEL PUNISHMENTS. [chap. i. institution wherever she went, and with which she had grown familiar before she had conquered a province. But no nation could say of her that she had introduced slavery where it was unknown before. She conferred privileges, often amounting to equality, upon her subjects, and did not take away from them the privilege of keeping or of selling the slaves by whom they had always been served. In those points in which she placed the higher provincials on the level of slaves she placed the most favoured Roman on precisely the same level. In accusations of that crime alone which we should now call High Treason, she insisted that all men were equal in the eye of the law — to suffer .the same torture — to die the same death. Turn wherever we may in the immortal codes which Rome has bequeathed to us we find everywhere The origin the same liberality, restrained only, but every- cruVpunSi- where restrained, by the same military tradition, the same determination to acquire, and to hold what has been acquired, if necessary, by the strong hand. By fire and sword she won her way, and she did not survive long enough to banish the recollection of sword and fire from her laws. The slave who accused his owner of any crime, except treason, was, for the mere offence of committing such an act of insubordination, punished ' by the sword,' or, in other words, was con- demned to a gladiatoral combat in the arena. The slave who, without his owner's knowledge, harboured a thief, the slave who committed adultery with a free woman, the coiner who . brought discredit upon the currency of the Empire were, without mercy, given over to the flames. What barbarism, it may be asked, could have been afterwards introduced more barbarous than such punish- CHAP. I.] ROMAN PUNISHMENT FOR PARRICIDE. 15 ments as these ? To that question a fitter answer may be given in subsequent details than by a general state- ment. But any one who should regard only •' & / Brighter side these blots upon the Roman code would have of fhe Roman ^ Criminal not the slightest conception of its general scope. ^^l^^^^^T Nothing is more remarkable in it, nothing more '*'"™'=- deserving of admiration, than the evident design to find a penalty in just proportion to the offence, and to mark out distinctly the various grades of crime. The old Roman of the Republic could not imagine any sin more revolting than to murder a blood relation — father, mother, brother, sister, son, or daughter ; and the ancient tradition survived through all the luxury of the empire. Parricide was the legal name of this offence, and the dif- ferent forms taken by the love of kindred among the Romans and among those who succeeded them in Britain are well worthy of remark. Among the Teutonic inva- ders of Britain, though the kin-tie was at the very root of their institutions, we shall find the loss of a kinsman regarded as an excellent opportunity for making a bargain ; among the Romans the family-bond was considered so sacred that a most extraordinary death was devised for him who violated it. Not in the amphitheatre, not at the stake, not on the cross was the parricide to perish. A sack was to be his winding-sheet ; in that he was to be sewn up alive, and venomous serpents with him. He was to be thrown into the sea if the sea was near at hand, and, if not, into a river, so that the heavens might be hidden from him while still alive, and the earth deny him a grave when dead. A number of crimes were by special laws declared capital — such as forcible entry upon land or house, adultery committed by a free woman with a slave, and 1 6 MERCIFUL PROVISIONS [chap. i. infanticide. It should however be remembered that ac- cording to the Roman law a capital offence was not necessarily punished by death, but was also a technical description of those offences which were punishable by loss of civil condition — by degradation from freedom to slavery, or deprivation of the full privileges of citizenship. A punishment analogous to the French galleys, or im- prisonment in our own dockyards, was the compulsory service in mines ; transportation, too, was by no means uncommon ; and the precursor of our own tread-mill may be found in the Roman hand-mill. If the use of torture, the punishments inflicted on slaves, and the punishments for witchcraft and parri- ^ ,. . cide, are left out of consideration, the Roman Justice temp- ' ' mercy under Criminal Law, as it existed during the later occu- the Empire, potion of Britain, is remarkable, even to modern eyes, for the mercy which tempered its justice. Our knowledge of it is derived from the ordinances which the Emperors directed to various officers, and especially to persons exercising authority in the Provinces. We may, therefore, reasonably infer that, where the Roman power was fully established, the Roman law became, in all the more important criminal offences, the law by which the provincials were judged. In the towns which had an organisation of their own, some minor local cus- toms may, in accordance with the liberal spirit of the Romans towards their subjects, have been permitted to survive, or even to grow up anew. But in cases of treason or homicide, the imperial jui'isdiction was asserted, and the tenderness with which it was enforced is a re- markable contrast to the judicial murders of a later age. The witnesses, if of low rank, might, it is true, be tortured (as suspected persons might have been, many centuries CHAP. I.J OF THE ROMAN LA W. *7 afterwards, by license of the King of England, and later still by virtue of an Order in Council), but in other respects the accused had every protection which human forethought could devise against an unjust judgment. Sentence of death was not to be pronounced unless either the accused confessed, or all the witnesses agreed ; the testimony of one witness alone, no matter what his rank, was insufficient ; and all evidence had to be given on oath. When the witnesses were not unanimous, the matter might be referred to the Emperor if the accused had sufficient confidence in his own case. It is strange to find in the laws of a people which had always been familiar with slavery a regard for personal liberty such as was not to be discovered in Eng- Regard for personal lish laws before the Habeas Corpus Act was fiterty. passed in the reign of Charles II. No one was in the eye of the law so much as accused until the accusation had been made, according to legal form, in writing ; still less could anyone be put to the torture upon the mere word of an enemy. Even when in gaol the accused were not to be subjected to any duress, nor were women to be imprisoned in the same room with men. The case of every prisoner was to be heard within a month, and, should either accused or accuser ask for a postponement, the judges were to make it as short as possible, and in no case allow it to exceed a year from the day of accusation. If the accuser did not appear to prosecute, or withdraw the charge within that time, he subjected himself to severe penalties, and the accused was of course set free. It was;» too, a rule worthy of remark, and perhaps of imitationj, that the evidence of an approver should be entirely re- jected. No man's freedom or reputation could be endan- VOL. I. ' C i8 ROMAN LAW IN THE PROVINCES. [chap. i. gered by the malice of one who confessed himself a criminal. Should it be asked whether the inhabitants of the provinces had the full advantage of these beneficent laws, Participation an answer may be found in a letter of the Em- vinees in the peror Constantinc directed to ' The Provincials benefits of Ro- man law. in General.' ' If there be any one, he wrote, ' no matter what his dwelling-place or what his rank, who can prove any mis-deed against judge, or count, or friend of mine, or officer of my palace, let him lay the matter before me ; I will hold him harmless, I will see right done, I will take care that he shall not suffer in standing or in substance.' Constantine also denied to senators the privilege of trial in their own country, and required that they should be brought to justice in the province in which they had committed a rape, or a forcible entry upon another man's land, or any other serious crime. The extortion of money by a provincial judge for his own use was afterwards declared a capital offence. There is no doubt that when condign punishments are newly provided for any crime, the crime itself has been recently brought into notice. There is no doubt that when government is, in any sense, government by the sword, the governed are to some extent oppressed and plundered. Every classical scholar knows what Sicily suffered under Verres, and will be inclined to believe that Britain was not happier under any other Roman officer. Yet if we admit that there were unjust and rapacious governors sent from Rome, that military service was a grievous burden, and that the strict letter of the law was turned as much as possible against the native, rather than in his favour, we shall still be forced to the conclusion that life was in every way more tolerable in Britain for CHAP. I.] CHRISTIANITY AND ROMAN LA W. 19 every class in the fourth century than it was in the four- teenth. It is not in one rescript, nor in two, but in the whole spirit of the Roman law after the accession of Constantino that we perceive what generous sentiments compassion , . . ., , , . 1 . , shewn under were begmnmgto prevail, and how rapid might the Empire to 11 11 <-i-M 1 ^^ children have been the advance of the civilised, could of criminals, the barbarians only have been kept out. It was most hu' manely provided that when any man was convicted of any offence except treason, the punishment should not extend beyond himself, and that his children should enjoy his goods without deduction. A comparison may with profit be drawn between this law and the law, upon which Englishmen acted within the memory of living persons, that not only conviction of felony involved forfeiture of everything, but the mere flight of the accused involved the loss of all his goods and chattels. Even in the case of slaves, too, though the punishment of burning was not extinct, there was welling up a new stream of thought which must soon have extin- improvement guished it, had not the barbarians overwhelmed uon^l/'siaveg the Empire. The fourth century, it must be adoptkinof remembered, was a time when Christianity was "="*™'y' still young, when it had but just been adopted as the im- perial religion in Rome, and when its priests could not act in (iirect opposition to the spirit of its Founder. There had been great moralists whom Greek Sophists had mocked, and whom Roman Epicureans had imitated, but none of them had enunciated the great principle — ' It is not the will of your Father in Heaven that one of these little ones should perish.' In that sentence lies the great distinction between Heathen and Christian codes of morals ; and though Christians might easily enough dis- c 2 izo TREATMENT OF SLA VES. [chap. i. regard it when they had no longer to contend with opposing forms of faith, they were compelled, whether they would or not, to make much of it when the splendid worship of Jupiter, and the enlightened teachings of Aristotle were still competing for the approbation of mankind. Accordingly the first Christian Emperor for- bade the practice of branding on the forehead those convicts who were condemned to the Games or to the Mines — punishments which involved the loss of freedom. It is true that the brand was to be placed on the hands or on the legs, just as it is true that slavery was not abolished. But the prohibition is none the less an indication that new views were beginning to show themselves in prac- tice, and similar indications are by no means rare. Constantine carefully limited the ' correction of slaves.' They might still be chastised with* a slender rod or with Treatment of ^^ \'&^, but not, as in former times, with the m^nsand^by cudgel. Among the prohibited punishments, barbanans. ^^^^ were a mortal wound with any sharp weapon, the administration of poison, various kinds of torture, stoning, hanging, mutilation, and throwing from a height — ' for these,' the Emperor added, ' are the cruelties of the ruthless barbarians.' Happy the provinces in the days of the Empire ! The time was not far distant when those -who had previously been free were to be made slaves, and all who had not the good fortune to be barbarians in Britain were to suffer those very atrocities which had excited the horror pf Constantine — the mutilation, the fall down a precipice, and the stoning. If we enquire what were, during the Empire, the ranks of men above the condition of slaves, we find in some respects a striking resemblance to the later feudal or- ganisation, in others a striking difference. There was CHAP. I.] SOCIETY UNDER THE ROMANS. 21 a class which tilled the soil, and which was in a position very like that of the villeins regardant under the Plan- tagenet kings. When the land on which they sodai grades . 111 lit under the were born was sold, they were handed over to Empire : the , tillers of the the new owners by the same conveyance as the soil- land itself; but like the villeins regardant, they could not be treated as mere chattels, and exported at the will of the landlord. Like the villeins, too, they acquired, or began with, privileges very nearly approaching those of the copyholder of later times. They paid a customary rent for the ground on which they lived, they could enjoy some at least of the profits of their own labours, and they could bequeath their property by will. Directly or in- directly they contributed not a little to the revenues of the Empire. Above these subject farmers, and in close relation with them was a class which corresponded in many respects with the knight, or land-holder, of the later feu- ^j^^ ^^^^^ dal period. These ' possessors ' as they were °^°^"- called, were practically, however, the absolute owners of land, and could alienate it as they pleased, without the feudal restraints. They could even grant a species of lease in perpetuity, reserving to themselves a rent to be paid at stated seasons. In earlier times they were, like the feudal nobles, a military caste — men who had received a grant of land for good service, or who had inherited land through the good service rendered by their fore- fathers. But city plebeians, who were described as of splendid fortune, were by no means unknown in the pro- vinces ; and the trader whose great grandfather had, perhaps, been a manumitted slave, could, under the Empire, meet patrician land-owners on terms not alto- gether unequal, 33 ROMAN COLONIAL COURTS. [chap. i. The possessors Wefe subject to certain burdens, from which, indeed, land has rarely been altogether free. To Duties of the ^^P^'i" the roads and the defences of the Empire, th^to™aV '^^^ ^ ^^^y ^^om which no men of substance courts. Were exempt ; alld from the land-owner was exacted that kind of service which ill later times was known as ' suit of court.' In the provinces there were courts which met in the principal cities to transact finan- cial business, and to appoint certain magistrates. The members had each to render an account for a particular district, usually, no doubt, the territory which belonged to him. The accounts rendered by the whole of the members of all these local courts furnished the sum total of the land tax collected throughout the Empire. A brief, but precious document, tells us that this organi- sation existed in Britain as it existed elsewhere, and that the government of Roman Britain was, in all material points, like the government of the other provinces. The members of these colonial courts, though they had certain onerous duties to perform, enjoyed, in corn- Recognition pensation, both social distinction and valuable of personal . property: pnvileges. Though themselves compelled to commerce, serve, they had the power of compelling others to serve with them, and of deciding, in accordance with' imperial rescripts, who were duly qualified, and therefore bound to sit in their court. They could not, like their slaves and dependents, be put to the torture, nor sub- jected to any humiliating punishment, and their position in their own district was equal to that of the senators at Rome. Nor were they in the fourth century all men of the same class — all favoured Italians, or successful military adventurers — meeting to compare notes concerning the money which might be extorted from a subject population. CHAP. I.] PART OF BRITAIN FULLY ROMANISED. 23 Anyone, no matter what his origin, who possessed the property quaHfication, was nominated a member of the court which administered the affairs of his district. As wealth increased, too, the importance of personal pro- perty began to be recognised, and considered te=ie a suf- ficient quaHfication for a seat in the court. Other taxes began to approach the land-tax in value, and commerce began to improve the aspect of the whole Roman world. In the towns there were bodies known as colleges, or, as we should now say, companies or guilds, which were under the supervision of the imperial government, and which had evidently attained a high position before the Romans quitted Britain. Known in the earliest days of Roman history, they survived all changes of political constitution, and seem even to have acquired a political power of their own. The imperial laws contain numerous provisions for determining the relation of the guilds to those local courts which have already been described. It became a common practice to plead membership of a guild as a ground of exemption from membership of the court. The validity of this plea was not admitted, and the guilds-men, if duly qualified, were compelled to serve in the court, and, perhaps, even to abandon their guild. But there can be no better proof of the progress made by corporations of various kinds than the fact that their members had the qualification for a seat in an essentially aristocratic court, and were yet by no means ambitious to occupy it. As in the case of the local courts, so in the case of the Roman guilds, there is sufficient evidence to show that what happened in other provinces happened Britain en- J; . , . . . joyed the full' also m Britam. In various places mscnptions benefit of , Roman civili- have been found which prove the existence sation. in Britain of those guilds which are mentioned in the 24 ROMAN REMAINS IN BRITAIN. [chap. i. Theodosian Code, some of which were commercial and others religious. Nor, indeed, can there be any reason- able doubt that the Roman civilisation flourished at one time in all its splendour, not, perhaps, in the remote West, but from the Western Hills to the German Ocean, and from Hadrian's Wall to the Channel. The loss to Britain, when she was deprived of all that the Romans had given her, is told not only in those laws' Her loss towards which we have approached more nearly man°abl^° ^s wc have Hsen above the succeeding law- doned her. i ii_"l i a. \. i lessness, . and which we know to have been established in our island, but in other monuments which not even ages of barbarism could wholly destroy. The ploughman still lights sometimes upon a store of coins which bear the image and superscription of men who ruled the civilised world. Busts which still bear traces of the sculptor's skill, pottery which still bears the mark of the factory where it was made, fragments of pillars and of mosaic pavements, the remains of roads built with such forethought and care as to command the admi- ration of modern road-makers, attest the combination of a great organisation with a knowledge which almost deserves to be called scientific. These silent witnesses rise year after year from the grave, to assure us that the 'Itinerary' of Antonine is no fiction — that there were no less than fifteen great roads in Roman Britain, each studded with growing towns, or with cities already mag- nificent. The peaceful arts leave behind them memorials more lasting than all the works of Agamemnon, or of the brave men who may have lived before him. They need not, like him, the inspired poet to singt their praises, but speak to posterity even after savages have destroyed them. It is not less easy to restore the design of a CHAP. I.] JOURNEY IN ROMAN BRITAIN 25 ruined temple, or to sketch the outline of a mutilated statue, than to represent to human eyes the form of beasts which lived before there were human beings upon earth. Those chapters in codes of Roman law which J:reat of public works, and prove how important they were in the mind of a Roman, need no commentary but the relics which accident or research has already brought to light in Britain. The pride with which each city was taught to regard its own works of art was, indeed, brought low, but is still to be read in the piteous lines of sculpture disfigured and buried for centuries, no less than in the law that the ornaments of one city should not be trans- ferred to another. All that Rome had borrowed from Greece she lent in turn to the provinces which acknow- ledged her sway ; and we know, with as much certainty as we know any fact in history, that Southern Britain could boast of towns rich in public buildings, to which a long period of quiet and order had given all the grandeur of classical art. And this was fifteen hundred years ago. Fifteen hundred years ago Southern Britain was a land in which the most luxurious English gentleman of modern times, could he abolish the intervening a joumey in , , - , ,.^ , . Roman centuries, would find life mo're to his taste than Britain. in that England which his great-grandfather thought marvellously civilised. When he rose in the morning some favourite slave would bring him his letters, one of which might, perhaps, be an invitation to stay with the Governor at a country villa. He would travel just as our grandfathers travelled, in a carriage, but by a better and a straighter road, and he would find relays of horses (provided only for men of rank) at convenient stages. If his journey was long, he would pass through at least one town in which the architecture of the court-house. 26 A ROMAN VILLA IN BRITAIN. [chap. i. and of many temples, could hardly fail to command his admiration. Perhaps, too, he might recognise a friend among the officers of a legion in garrison, with whom he might exchange a word or two while the horses were being changed, or he might inspect a mint in full ope- ration. Further on he might meet another legion on the march — a legion of British soldiers destined for foreign service, or a legion from beyond sea brought over to do duty in Britain. Save these casual suggestions of the pomp and circumstance of war, he would encounter only indications of peace, of wealth, and of security. If he enquired what was yonder pile of buildings — a town in all but gates and towers of defence — he would learn that it was the villa perchance of some imperial officer, per- chance of some Romanised Briton, descended from a line of petty kings, perchance of a merchant who had grown wealthy in trade. But, in a day's travel, he would see villa after villa, till the sight, like the sight of innumer- able mile-stones, would cease to be a novelty, and he would cease to enquire for the owner. At the moment when he began to be fatigued with a long day on the road, he might possibly be struck by the Splendour of beauty and convenience of the site chosen for Brito^n under some villa more imposing than any he had the Empire, pegged. He would hear, perhaps, with agree- able surprise, that it was the country house or palace of Pacatian, 'Vicar of the Britains.' His carriage would be driven up a long and straight avenue, terminating in a flower garden in which box-trees and yew-trees were cut into innumerable fantastic shapes. The front of the house presented a long range of pillars, forming a con- tinuous portico or covered walk, from which the grounds and the landscape could be seen to greatest advantage. CHAP. I.] A ROMAN VILLA IN BRITAIN. 27 Beyond the portico was a hall, in which the guest would be received, and which was unlike anything within the ordinary experience of modern Englishmen. It was a square room of vast dimensions, roofed in at the four sides, but open in the centre. It consisted of four galleries enclosing a basin, into which the rain fell in wet weather, and in which a fountain played when required. The floors of these galleries were tessellated pavements of no rude workmanship, and were, in fact, exquisite paintings in mosaic, surpassed only by the still more exquisite mosaic of the inner basin. The walls were relieved by statues representing all the favourite subjects of the old mythology — Orpheus and his lyre, Naiads, Satyrs, and Centaurs, Pan, and Triton, all the subjects of classical romance, with, perhaps, a bust of the reigning emperor. From the great reception hall, unless his charnber communicated with it immediately, he would be conducted to another still greater hall, built in the same fashion, and adorned with the same splendour. A door in this peristyle, as it was called, opened into a small ante-room, or dressing-room, ■ through which he would pass to his bed-room. If he asked for a bath, he could enjoy it in any form he pleased, but most readily that kind of bath which is now known as the Turkish. Wherever he went some work of art would meet his eye — paintings on the walls of his chamber, paintings and sculpture in the passages which led to the bath- rooms, paintings and sculpture in the bath-rooms them- selves. Nothing which could gratify the senses, or even the intellect, was forgotten. The very pavements, which were worthy of study for their beauty and remarkable for their exquisite cleanliness, were warmed, if necessary, by an elaborate network of stoves and flues, watched by a 28 A ROMAN VILLA IN BRITAIN. [chap. i. troop of unseen slaves, in the basement beneath the principal apartments. When the guest returned to his chamber, he would find himself protected from chill by a glazed window, not unlike the lattices which are even now to be seen in England. When summoned to dinner, he would enter the dining-room through the greater hall, in which the fountains would be playing, and in which flowers and shrubs tastefully arranged would suggest the idea that the host or his wife had a love of nature as well as of art. If he paused a moment, to look more carefully around him, he would perceive that the leading con- ception of the architect had been to surround all that was most exquisite in art with the beauties of nature. If he turned his eyes to the portico by which he had entered, he could still see the garden and avenue by which he had approached the house, with green woods and sparkling streams in the distance ; if he turned his back to the entrance, he could see, beyond the Corinthian pillars and brilliant frescoes in the midst of which he stood, another and more carefully tended garden, and, in the background, a bright landscape of hill and dale, rich with a golden harvest, and enlivened by a throng of harvesters. It is needless to dilate upon the luxury of such a dinner as a Roman governor would have given to an honoured guest. The subject has been often handled, and has not, like the prosperity of the arts and the building of innumerable unfortified palaces in the open country, a direct bearing upon the general feeling of security, nor, therefore, upon the History of Crime. Yet it may not be out of place to recall in imagination such a conversation as may have passed, at some time CHAP. I.] A ROMAN LADY IN BRITAIN. 29 during a long visit, between the governor or his wife and a guest who was regarded as an intimate friend. The wife would have shown herself to be, like the ^ ,. ' Culture of its governor himself, a person of culture and of °'='="pa'''=- taste. Like a modern English lady, she held a high position, and was not, like the women of a savage or half-civilised tribe, placed on the level of a slave, forced to do the work which was beneath the dignity of a man, married by the ceremony of sale to a master. Both she and her children were secured against future poverty, so far as human circunistances permit security, by such settlements as are made in the present day. She had the command of waiting women, who were slaves, and she was respected both by the whole house- hold and by her husband. If it pleased her, she could devote her time and her wealth to those feminine adorn- ments in which the ladies of ancient Rome may almost be said to have set the fashion to the ladies of modern Europe. She could buy, jewels and silk to her heart's content, and pile up false hair on her head as high as she pleased. But she could also (and many a Roman lady did) cultivate her mind as well as decorate her person. She had been taught in childhood by the same tutor as her brothers, and had access, after marriage, to her husband's well stored library. With a lady such as might have been Pacatian's wife, or with Pacatian himself, a relative or friend of long standing might have discussed the politics of q^^^^^, ^^^^ the day, and the position of Britain in the ^Vman"'^ '° civilised world. It would have been hardly ^"''"°- possible that such a question could have been asked as whether life and property were reasonably secure in the South Eastern, or truly Romanised part of the island. 30 SSJVS^ OF SECURITY IN BRITAIN. [chap. i. Yet, had such a question been asked, it is not difficult to recall the easy and ready answer which would have been given. ' You have travelled the whole day in comfort, and have nowhere been robbed, or molested, or threat- ened. You have seen the natives peacefully gathering in their corn, which is more than sufficient for our wants, which can be easily carried from the very centre of the island to the sea, and some of which may be exported to less favoured lands. You have passed villa after villa standing alone in the open country, with no fortification, and with no protection save that which the owner's slaves would render without fail in case of need. You have met a legion of British soldiers, marching cheerfully to serve against the enemies of the Empire, of which they are proud to believe that they are not the subjects but the citizens. If you would know whether such human happiness as is possible anywhere is possible in Britain, you have but to tri}st the evidence offered to your senses every hour of the day.' Though, however, the condition of his province might well have been a cause of pride to the governor, he The dangers might yet sometimefe'have seen, in imagination, from without: , , , " i r the barbarism a wammg wrjtmg on the frescoed wall of his which was to • i i come. palace. 'No land, he might have argued, ' is so secure as Southern Britain^-protected from the barbarians of the island itself by a continuous line of fortresses protected from the barbarians of Northern Germany by the stronger fortress of the sea. But, secure as Britain seems, even she is in danger, and, perhaps, not least in danger where her strength seems greatest., The greed of gold has made us what we are, but well does it deserve to be called, as the poet has called it, accursed, when citizens of Rome give Roman arms and teach Roman CHAP. I.] THE DANGERS FROM WITHOUT. 31 arts of war to barbarians for a flock of sheep or a drove of oxen. Avaricious shipwrights have passed our Bata- vian frontier, and taught the art of ship-building to a brutal race which lives in the Northern wilds beyond. Our empire is the empire of the sea no less than of the land ; but these Germans, who have long lived by- plunder on land, have already learned to seek plunder by sea. There will, no doubt, issue, ere long, an im- perial edict forbidding Romans to do that which they have already done with too good effect. It will come, like many other edicts, too late.' When the Empire was decaying, luxury was accom- panied by a train of vices, very well known to savages, who enjoy a reputation for virtue only because they are unable to satirise their own misdeeds in writing. But the codes of Roman law are sufficient to prove that justice and mercy had kept pace with the advance of wealth and enlightenment. A Roman governor might have been, as might be even a modern Englishman, unjust and an extortioner, but he might also have been a man liberal alike in thought and in action, and delicately sensitive to the sufferings of others. ^A one of the better kind of Romans, the contemplation of such a possible event as the subjection of Britain to barbarous hordes from beyond the sea must have been intolerably painful. Yet, even a morbid imagination could hardly draw a picture more gloomy than the events of many succeeding centuries. The land which had been cleared was again to become waste and forest, the roads were to continue in existence not so much by rude attempts to repair them as through the skill with which they had been first constructed. The walls of the villas were to be demolished, sometimes out of mere wantonness, sometimes to build a hut for a con- 32 ANTICIPATIONS OF COMING BARBARISM, [chap. i. temptuous savage. Nothing was to remain of all the past splendour, save, perhaps, the towns which were impregnable to barbarians, some works too solid for barbarians to destroy, and some shattered tokens of the fine arts which, to barbarians, were meaningless. All this a Governor of Britain, who was familiar with the foreign affairs of his time, might have foreseen. He might have foreseen the day when the physicians, the secretaries, and the jesters of a future governor — nomi- nally his slaves, in reality his friends — would be ruthlessly killed, or become the slaves of brigands who had never seen papyrus or parchment, and to whom writing was an unknown art. He must have had compassion for all who were to survive when military adventurers had sown dissension throughout the Empire, when Britain had, by intestine commotions, prepared her soil for an invader, and when the only invaders who could appear possessed hardly the rudiments of civilisation. ' There are few of my slaves,' he might have said, ' who have not more culture than a barbarian king. There are none for whom the future can be even tolerable, except, perhaps, the ploughmen and the grooms. The barbarians enjoy sport after their rough fashion ; they cannot live without corn ; and they may spare at least the lives of the men, who can feed them and keep their horses in condition. Yet it were better to kill a horse, or even a dog, than suflFer it to be tortured by those merciless pirates, who are learning to sail on the Northern Sea,' Before, however, we pass from the rule of the Ro- mans to the rule of their successors, it is necessary to Roman and glancc at some other matters which have their superstitions, bearmg upon the history, even if we assume that not one human being of British or Roman stock has CHAP. I.] DIFFUSION OF SUPERSTITIONS. 33 English descendants at the present day, and that no traditions survived the horrors of the Teutonic inroads. Superstition plays so prominent a part in the History of Crime, it asserts itself in so many different shapes — from the practice of the ordeal to accusations of witchcraft — that it is not altogether unworthy of study wherever it may be found. There are, therefore, two justifications for touching on the superstitions which must have had a footing in Britain during the Roman occupation. One is that subsequent events may receive some illustration from the wide realm of superstition in general, the other that, in the eyes of those who disbelieve the stoi:y of extermination by Teutonic swords, the continuity of our history may not be lost. Fortune -telling in various forms, incantations, love- potions, magic, and many other appeals to human cre- dulity are frequently mentioned, half laughingly, half seriously, by Roman writers of all ages. The Roman equivalent for witchcraft was a capital offence by the laws of the Twelve Tables. Horace gives a description of Canidia that would serve well enough for a witch of the seventeenth century. It was supposed that she had dealings with the powers of darkness below, and that she had some influence over the stars. She could deprive the body of its vigour, the complexion of its beauty, the hair of its colour. She could command sickness and pain to be present whenever she pleased. She could mount on the shoulders of her enemies and ride them whither she would. The witches of Rome, like the witches in Macbeth, joined in hideous rites at midnight. Like the witches afterwards condemned in English courts of law, they were said to have made images of the persons whose VOL. I. D 34 ROMAN BELIEF IN WITCHCRAFT. [chap. i. destiny was to be influenced, and to have done to the images that which they wished to befal the living beings. The whole of the witch's apparatus was in the one age precisely what it was in the other, even to the infernal familiars in the shape of dogs and other brutes. Later writers attributed to various priesthoods, and among them to that of the Britons, extraordinary powers of magic. Before the great British revolt, under Boadicea, it is credibly related that the Roman veterans were depressed by the supernatural manifestations which, as they supposed, threatened them with destruction. The statue of Victory which had been set up in Camulo- dunum (the modern Colchester) fell to the ground with- out apparent cause, and turned its back in token of defeat. Women, with the inspiration of madness, sang of death and destruction. Strange noises were heard in the court-house, and loud bowlings in the theatre. The likeness of the town itself in ruins was seen in the estuary of the Thames. The very sea appeared to be stained with blood, and the shore to be strewn with dead bodies when the tide ebbed. The credulous Roman soldiers heard these stories and trembled. The imported scepticism of such writers as Horace, the growth of the towns, and, with it, the promise of a higher civilisation, were influences operating during the Roman occupation of Britain, which had, perhaps, some tendency to eradicate these superstitions. But we know from many passages in the Theodosian Code that, in civilised Rome herself, after Rome had become Christian, it was thought right to torture and burn wizards and magicians. And when we reflect that so great a man as Sir Matthew Hale expressed his belief in witchcraft, we may feel certain that superstition had not been rooted CHAP. I.J CHRISTIANITY IN BRITAIN. 35 out of Britain in the fourth century. The polytheism of the Romans had, before Christianity was the reHgion of Rome, practically, though not theoretically, degenerated into a kind of pantheism. In their empire there was no natural object which might not have its own divinity or genius, no human being who might not aspire to be Emperor, and after dying as Emperor, to live again as God. In the efforts to subvert the ancient beliefs Christians recognised witchcraft as a worship of devils ; and if they recognised it at Rome we may be sure that they recognised it in Britain. The stories that Peter the Apostle made a journey in person, and that St. Paul despatched Aristobulus to convert the Britons, are not found in any writings which will endure the test of historical criticism ; nor is there any evidence that Joseph of Arimathsea ever set foot upon this island. It is, nevertheless, tolerably certain that some form of Chris- tianity, already infected with Gnosticism and with the old superstitions of paganism, was well known in Britain, if not generally accepted, before the Romans abandoned the island. A few sentences will suffice to show what was the character of that faith in its relation to the purposes of the present history. It is possible by a train of reasoning which would be out of place in the text of this work, to show that Chris- tianity was known in some portion of the introduction British Islands, if not in that portion which is Slnityinto now called England, before the Council of Nice. This, however, it may be said, was not the Christianity of the Roman Church. So much the fea- tures of the subsequent controversies, in England, in the seventh century, upon the observance of Easter, and other matters, are sufficient to prove. In order, there- 36 CHRISTIANITY INFECTED WITH [chap. i. fore, to ascertain what was believed by the early British Christians it is necessary to consider what was believed by Christians in other parts of the world, as well as in Rome, before the fourth century. It happens that most of the writers who lived during that period were natives of the East — of Egypt, of Palestine, or of Asia Minor; and it is not a little remarkable that they give evidence of an almost universal belief in the same superstitions. The authors, as Christians, had an interest in the events and in the creeds of the whole Christian world, and they enable us to discover that many opinions passed current from Africa to the Alps, and from Asia Minor to the British Islands. They tell us, in fact, precisely what might have been inferred from passages in the Theodosian Code. In almost all the countries of the Roman Empire the pagans believed that rocks, and woods, and springs, or The super- the deities which presided over them, had the which1t™'as power of bestowing blessings or inflicting injuries. Wherever Christians dwelt among pagans they shared the same belief, but called the supposed powers by the name of 'demons,' and held everything connected with these evil spirits accursed. It is impossible to read the works of Tertullian, Origen, or Eusebius without perceiving that in their imagination the earth, and all that is upon or around it, must have been peopled with numberless invisible beings. Tertullian declared that Christians ought not to be present at those spectacles in which the Roman world delighted because they were ceremonies which had their origin in idolatry, because idolatry was equivalent to the worship of demons, and because all who had been baptised had promised to renounce the devil and his angels. Origen CHAP. I.] PAGAN SUPERSTITIONS. 37 insists again and again upon the virtue existing in the names of Abraham, Isaac, and Jacob, which had only to be mentioned in order to put all demons to flight. He supposed that these enemies of mankind had taken up their abode in the dense air which hangs immediately above the earth, and that they were known by the names of Jupiter and of all the other heathen gods. He believed that they had light and volatile forms, which, like the wind, were unseen, but went where they listed, and that it was their malignant influence which produced famines, and blights, and droughts, and epidemics. The arts of magicians, and of all who practised sleight of hand, appeared to him to be the works of devils. But though the evil spirits had not the gross bodies of human beings, they could not, it was supposed, exist without food ; they delighted especially in blood, which they eagerly licked up when sacrifices were offered to idols. Sometimes even the liberty of the demons themselves could be restrained by the devices of magic ; and a devil could be chained to a grave or a building as surely as a horse could be held by his tethei'. These doctrines, which developed in the East into the most charming of all romances degenerated in the West into the most grovelling superstitions. Their wide The Teutonic adventurers perhaps learned •^'®'='°"' nothing from the people they vanquished. Ideas, which, from their wide diffusion over the Roman Empire, must have been independent alike of race and language, might well have been shared by barbarians outside the circle of Roman conquest. That which was common to the Egyptian fellah and the Italian colonist might well have been common also to the German robber. A few sentences in Tacitus, which would be equally applicable 38 CHRISTIANITY, SUPERSTITION, AND [chap. i. to the beliefs of any uncivilised tribe, or even to the religion of the Romans, are all that remain to tell us of the creeds which came from Germany to Britain. Centuries afterwards the curtain is lifted again and we see mingled with Christianity in England, but deprived of all their beauty, those strange fancies with which the writings of the Eastern fathers teem, which have given names to imaginary crimes, and, age after age, have been put forward as the excuse foi" inhuman atrocities. In Christian England, when it first becomes known to us under that name, one of the most striking features Their appear- i^ the popular belief in the power of human ^Sion rf *^ beings to make contracts with demons. Special ugusme. penances were provided for those who, by evil practices, acquired the art of sending forth tempests : in this and in similar cases it is always clear that the punishment is inflicted not for believing in the influence of the demons, but for making use of that existing influence to attain an end. The demons themselves seem commonly to be identified with the old pagan gods, who were held in honour many generations after Augustine's mission. Even as late as the beginning of the eleventh century it was thought necessary to enact that Christianity should be maintained and Heathenism expelled. The clergy during the whole of this time seem to havfe been most firm believers in the power of those who styled themselves magicians or enchanters ; and it was even decreed that if one of the clergy himself practised the forbidden arts he should be degraded. Witchcraft, as practised by women, already comes into prominence. A penance of one year's duration was considered sufficient for ordinary offences of this kind • but when the woman succeeded, by her devilish devices CHAP. I.J THE CRIME OF WITCHCRAFT. 39 in killing her victim, the amount of her punishment was multiplied by seven. The crime of seeking out a person who professed to foretell the future, or of inviting such person to enter a house, was not less heinous than sorcery itself If a clergyman, the transgressor incurred the sentence of degradation ; if a layman, he subjected himself to a five years' penance. It was a common practice to make vows at particular spots which were supposed to be favoured by supernatural powers, at trees, at springs, and at stones, just as in the days of Origen and Eusebius. Love and hatred, fertility and sterility, success and failure, health and disease, even existence itself .were believed to be, partly at least, in the hands of the demons or pagan gods, who employed the enchanters as their agents. Almost indistinguishable from the belief in witchcraft, as will be seen in later history, was the belief that persons subject to epilepsy, mania, or any form of mental weakness were possessed by a devil, which could be expelled by the performance of certain religious cere- monies. The Church sanctioned a form of exorcism, and the exorcist was considered to hold the third rank in the ecclesiastical order. In England an attempt was made to combine the forces of medicine with the forces of religion, just as, many centuries afterwards, it was the custom to consult a physician upon the cases of persons bewitched. Prescriptions were accordingly given, even in these early days not indeed for the cure of madness, but for the ejection of devils. The remedies were usually in the form of drinks. Ale was always one of the ingredients, mixed with various herbs. Sometimes twelve masses were sung over the mixture before it was administered ; sometimes holy water was poured into the 40 WITCHCRAFT AND THE CHURCH. [chap. i. ale. One recipe, however, was considered efificacious against the devil without any assistance from the Church ; it was an emetic, which, we may presume, was supposed to dislodge him bodily from his seat in the patient's frame. In order to understand the prominence assumed by accusations of witchcraft in later times it is necessary to The crime of remember that the belief in the practice has Sdfte^' descended from the most remote ages, has received in turn the stamp of many religions, and was unfortunately, though perhaps, inevitably, sanc- tioned by the successors of Augustine. The educated monks, who were the literary and scientific men of their day, have handed down in writing a number of charms which throw considerable light on the subject. To find cattle, to recover stolen goods, to heal the sick, to guard against ' every strange thing that cometh by a.ir or by land,' were objects which, according to the ideas then pre- valent, could be attained by certain collocations of words, &nd without incurring the sin of sorcery. Our fore- fathers, when they were converted, learned not to abandon their faith in charms, but to seek new charms in the ' Pater Noster ' and the ' Credo.' They were not brought face to face with a pure Christianity. At that time, when the Church discovered a stronghold of pagan superstitions, it fought not always for the demolition of the fortress, but for possession in its own name. Gregory himself suggested to Augustine that the buildings in which the ancient gods had been worshipped should not be destroyed but converted to the service of Christianity. The same principles pervaded every field of human life. The leech-books are not only full of pagan and of Christian devices for obtaining supernatural assistance, but show us the new creed marching boldly upon the CHAP. I.] TEUTONIC CUSTOMS: THE BLOOD-FEUD. 41 ground of the diviner and the magician, and endeavour- ing to swallow them up as Aaron's rod had swallowed up the rods of the Egyptians. And thus, if the enchanters of the past had pointed out where that which was lost could be found by their arts, the Church was prepared with enchantments which were no less powerful, but which did not derive their power from the Devil. If the peasant discovered that his land was bewitched, he was assured that the priest could aid him as effectually and more safely than the sorcerer. Thus far, only those beliefs and customs have been noticed which were, or, for all we know to the contrary, might have been, common to all the earliest in- „ . o ' Customs in- habitants of the British Islands, or which may Jh^Temo^c serve hereafter as a measure of civilisation, or '=^"^^"- as materials for an instructive contrast. It now becomes necessary to follow the Teutonic settlers from their home on the continent, and to discover whether they brought with them any laws and customs which have a bearing upon the History of Crime. The German tribes in general, according to Roman accounts, regarded homicide as a crime of little moment, hardly, indeed, as a crime at all. Bloodshed, setting a and acquisition throusfh bloodshed, are described human life: ^ ° the blood- as being the profession of the German ; and the feud. slaughter of a member of his own tribe was considered a less reprehensible action, than a petty theft. The offence was easily expiated by the forfeit of a small por- tion of his wealth; and he had no wealth but horses, cattle, and sheep. A part of the fine was paid to the relatives of the deceased, who were supposed to be aggrieved by the loss of their kinsman and to receive an 42 THE PRICE OF LIFE. [chap. i. equivalent in a sufficient quantity bf live stock. The remainder was paid to the chief, or became the common property of the tribe. In this practice are to be found, on the one hand, the rudiments of our early laws relating to homicide, and, on widediffu- the other hand, a point of contact with the clStom.' ^ usages of the savage in every part of the world. During the Homeric age the blood-feud was as fully recognised in Greece as afterwards in Germany ;"and one of the most prominent scenes on the marvellous shield designed by Hephaestus is a dispute concerning the pay- ment of the fine. The institution prevailed in Ireland and Wales after the Teutonic conquest of Southern Britain, and probably even during the Roman occupation of this island. The progress of philological discovery suggests plausibly enough that this with other customs might have been introduced by the people which planted the Aryan group of languages over nearly the whole of Europe, and a great portion of Asia. Such a view, how- ever, seems to be somewhat too narrow to embrace the whole of the facts. There is much to be learned from the study of philology, but still more from the study of human nature. Payment for human life is by no means simply co-extensive in its range with the diffusion of any group of languages. The ties of family have been recog- nised in this or a similar form in every nation or tribe of which the earliest history has been transmitted to us. The 'Avenger of Blood' appears in the laws , of the Jews precisely as the obligation of the family to adopt the quarrel of the individual is found among the Germans described by Tacitus, and precisely as the next of kin prosecutes the murderer in England, both before and after the Norman Conquest. There are differences with CHAP. I.] BARBARISM AND BLOOD-FINES. ■ 4;^ respect to the estimation in which the offence is held, and the severity with which it is punished ; but from the care with which compounding is prohibited in the Jewish law there is good reason to believe that it was not unknown either among the Jews themselves or among the nations which surrounded them.. In short, the ties of blood are so obvious that they have never escaped the notice of the wildest savage in either hemisphere, and the cupidity which will take goods in place of revenge is not the heritage of one tribe more than of another. The existence, however, of the blood-feud, combined with the principle of compensation, where it has become an established custom, indicates a particular stage g^^ ^ ^^ ^^ of human progress. It shows that a chieftain jJJ^hfJhlt^^^ or governing body has perceived the advantage ^'"^'^' to the community of preserving as many lives as possible for the common good. The primitive warrior's doctrine is that there is nothing to be gained by diminishing the available force of his battle-array, by inflicting death for an offence which shows no lack of courage. Better, he thinks, to reserve ignominy and the last extreme of punishment for those who will not or cannot fight. Such was the doctrine of the ancient Germans, such the doc- trine of every tribe no further advanced in civilisation. It is one step, and only one step, in advance of the most savage form of life, in which compensation is impossible because there is no property even in flocks and herds, in which the whole world is supposed to be a hunting- ground, and in which there is no right or justice but the will of the strongest. It is discovered only in a state of society in which mercy, generosity, and that quality which has been misnamed chivalry, have as yet found no place. It belongs only to those who will slay the wounded as 44 TEUTONIC FINE FOR HOMICIDE. [chap. i. they lie on the groundj and will, like Achilles, drag a fallen foe behind the victorious chariot. Such a condition of society naturally endures a longer or a shorter time in accordance with the genius of par- ticular tribes, or with their opportunities of im- It was msep- ■*■ ^ TeutorSf" provemcnt. It has been so well marked in conquest. ^^ German-spcaking nations, and it continued among them so long that it has often been described as one of their essential characteristics. The fact, however, that wherever a Teutonic tribe effected a settlement in a province of the Roman Empire it introduced the practice of compounding for homicide proves no more than that the whole of these tribes were in a state of extreme bar- barism. Goths in Spain, Burgundians and Franks in Gaul, Lombards in Italy, and all those adventurers, whatever their true names may have been, who conquered a portion of Britain, showed themselves to be all on the same level of culture. They carried with them to their new homes those customs which — when writing had been taught them-— they committed to writing, and dignified by the title of Dooms or Institutes. Sometimes they adopted either for themselves or for their subjects, a portion of the Roman Law which was drawn up for them in the form of a code ; but in such documents as this they inserted a clause reciting, with a quaint air of won- der, and in a tone of some superiority, that the Romans had omitted to specify the tax upon murder. This flaw, as they supposed it to be, in the Roman system of justice, they invariably made good. With a superfluity of detail, and with an abundance of distinctions, they appraised the life of every human being in the land, from that of the king to that of the slave. From these crude beginnings it has been necessary to evolve the CHAP. I.] BLOOD-FINE IN BRITAIN. 45 criminal law with respect to homicide in almost every country ih Europe. In that portion of Britain which was aftei'wards called England, there can be little doubt that the Roman Law had, in important matters, superseded all the itwasimro- native customs. And though even here the intoBritahTby practice of compounding for homicide had pro- invaders. ■ ' bably been in existence before the Roman occupation, there is not the least reason to suppose that it was re- vived, in the more civilised portion of the island, before the coming of the Teutonic settlers. To them, and to them only, must be ascribed the re-introduction of bar- barism in this form. As they were strong enough to impose their language, they must have been strong enough to impose their criminal rules upon those whom they did not slay. Wherever they were brought into contact with Roman civilisation, their course seems to have been uniform, and in this respect at least Britain could hardly have constituted an exception. The history of human thought with respect to homi- cide can thus be traced continuously from its starting- point in savage life, through the very earliest forms of civilisation, through the conflict of ideas which arose when trade and letters asserted their right to exist against private and public wars, and robbery, and ignorance, through all our political convulsions, down to the present age of security and refinement. There is but one point which seems open to controversy — the question whether town life, with the results which it has produced, has descended to us from the Romans, or has been indepen- dently developed by the Teutonic conquerors. It will be seen in a subsequent page, that the partisan of either theory may hold his own opinion without prejudice to 46 BLOOD-FINE AND CHRISTIANITY. [chap. i. the general course of the narrative. The power of the towns to effect any advance beyond the first two or three stages of improvement was for many centuries in abey- ance. If they continued to exist throughout the horrors which followed the evacuation of Britain by the Romans, they were in the end compelled to accept terms from the victor, and to adopt his usages with respect to crime. When England first emerges into the light of history, about the end of the seventh century, the descendants of It survived the pagan invaders and their subjects were fctoenfof'" nominally Christians. The process of conver- chpstiamty. ^j^^ j^^^ \,&&ri narrated by Bede, and his story is, to a certain extent, confirmed by the letters of some of the Popes ; but he lived so long after the events which he pretends to describe, and he has in other matters relied upon such worthless authorities, that it would be unsafe to give his statements implicit belief The fact, how- ever, that the inhabitants of Britain professed Christianity in his time may be considered undeniable ; it remains only to enquire what had been the effects of Christianity upon crimes and their expiation. Except in one point, which will be considered in its relation to the influence of towns, there was, neither in the eighth century nor at any subsequent time before the Norman Conquest, any modification of the ancient Teu- tonic view with respect' to murder. During this period the governing powers seem to have done more towards barbarising Christianity than Christianity towards soften- ing the manners of its proselytes. The prelates were associated with the other ' wise men ' in framing rudi- mentary codes for the petty states, and finally for the whole of England ; but they appear to have adapted themselves to the society in which they lived. They CHAP. I.J FINES AND PENANCES. 47 added the weight of their authority to various compila- tions of laws, but, except where the Church itself seemed in danger, they succeeded in doing but little towards infusing a Christian spirit into the laws themselves. They not only sanctioned the principle of compounding for murder, but established, side by side with it, the prin- ciple of compounding for penances. The history of the latter custom -shows how strangely opposite causes may lead to similar results. The doctrine of penance clearly arose out of the moral doctrine , *■ ^ It was asso- that he who does wrong to his neighbour should the'^racti'ce not only make compensation, but should himself °„'^°f™P°"°'^" undergo a proportionate amount of suffering. p™^=^=- To mortify the flesh was very early considered merito- rious by Christians, so far as any human action or conduct could possess any merit ; and it was therefore natural _ enough to believe that each particular sinful deed required a particular act of mortification. Hence arose the prac- tice of assigning fasts of greater or less duration for various offences, including those of which the secular law took cognisance. But the sick and the strong could not sustain the pains of abstinence with equal powers of en- durance ; and the penalty which was nominally the same was seen to be very different in fact when applied to different individuals. It therefore became necessary to vary the form of punishment in order that the weak and the aged might not suffer beyond their strength. The substitutes for fasting were prostrations and genuflexions, the singing of psalms, repetitions of the ' Pater Noster,' ' Credo,' or other prayers, and alms-giving. As soon, however, as the principle of substitution was admitted it led on to a system of equivalents. A certain number of psalms or prayers was declared equal to a certain length 48 COMMUTATION OF PENANCE. [chap. i. of fast. If the language of modern finance may be ap- plied to such a subject, the fast was the metal which, as the Mint adopts gold in the present day, was adopted by the Church for its standard ; the psalms, the prayers, and the alms were, like our notes, and silver, and copper, the tokens which were allowed to pass current for the sake of convenience. Though, perhaps, the transition was inevitable, when the difficulties in the imposition of penances had been recognised, this principle of commuta- tion at once effected a complete change in the character of penance itself as an institution. To give alms as an atonement for a crime, though the name might disguise the true nature of the transaction, was in reality to escape by a sacrifice of worldly goods the personal suffering which had been regarded not only as an element of jus- tice, but as a salutary moral discipline, for the wrong-doer. From first to last, perhaps, an attempt was made to inflict a real punishment — to adjust the payment to the means of the offender, and not simply, as in the case of the psalms and the prayers, to the length of the fast which had been enjoined. At first, too, the privilege of com- pounding might have been rigidly restricted to those fot whom it was originally intended. But the seeds of cor- ruption were sown, and when ambition found its way into the Church, alms were readily enough accepted from rich penitents, whether they were in s-ickness or in health. One of the first effects of the introduction from Rome of confession and penance, together with the principle of Distinctions Commutation, was to strengthen those distinc- crimtnli'"*^ tions of class which were already only too fa- laws. miliar to the German - speaking conquerors. Those who had alms to give enjoyed a favour which was necessarily denied to those who were destitute, whose CHAP. 1.] PUNISHMENTS ACCORDING TO RANK. 49 bodies, and whose very souls were not their own. If ever it was distinctly manifest that there was one law for the rich and another for the poor in England, it was in the four centuries which immediately preceded the Norman Conquest. In those days men truly gave to him that had, and from him that had not they took away even that which he seemed to have. The noble could murder, and be quit for a fine to the Church and another to be divided between the kinsfolk of the slain and the king. He had . the satisfaction of reflecting that, if murdered himself, his rank would be remembered in the sum to be paid as his ^price. The slave, however, not only incurred the penalty !^ V. of death or of mutilation for the most trifling offence, but \J was not even entitled to the privilege of observing the ' mass days ' in that manner which was supposed to bring ~>Si< man nearer to God. These days, which all fi"eemen were ^ expected to keep holy, were very carefully enumerated, and were more than forty in number. But slaves had days given them only when it seemed expedient to their masters ; the lord had it in his power to give or not to give ; and the favour, when not withheld, was most con- temptuously accorded. These distinctions of class appear most prominently in all the criminal laws, for which the clergy are responsible jointly with the lay magnates. Homicide, regarded throughout with barbarous lenity, has a descending scale of payments in accordance with the rank of the slain ; other ofl"ences, regarded generally with a still more barbarous ferocity, have a scale of punishments varying with the rank of the offender, but always more savage in proportion as the criminal is more helpless. Wealth would usually purchase impunity for the thief who had offended but once. He could pay compensation and VOL. I. E so SAVAGE PUNISHMENTS IN ENGLAND, [chap. i. fine. A second offence, according to one set of laws, was punishable with death; but this does not appear to have been the ordinary rule — much less the provision once made that no one should be permitted to buy off his life even in the case of a first theft. It was for the free man of low estate, for the slave, and for women that the greatest atrocities were reserved. Men branded on the forehead, without hands, without feet, without tongues, lived as an example of the danger which attended the commission of petty crimes, and as a warning to all who had the misfortune of holding no higher position than that of a churl. The horrors of the Danish invasions had no tendency to mitigate these severities ; and those who were chastised with whips before were chastised with scorpions afterwards. New ingenuity was brought to bear upon the art of mutilation, which was practised in every form. The eyes were plucked out ; the nose, the ears, and the upper lip were cut off ; the scalp was torn away ; and sometimes even, there is reason to believe, the whole body was flayed alive. But in another form there was barbarism as great as this, not perhaps before the Danish incursions had commenced, but certainly before the Danish dynasty was established. It appears to have no immediate connection with the evil passions roused by the conflict of hostile races or factions, but it may, perhaps, throw some light upon the treatment of heretics and female traitors in later times. It is the condemnation . to be burnt alive, which was sometimes passed upon a female slave who had been guilty of theft. The laws in which this penalty was decreed belong to the first half of the tenth century. They seem to be less indulgent, even to free men of the higher grade, CHAP. I.] WOMEN BURNT BY WOMEN. 51 than some of the similar compilations which precede and follow them. In savageness towards slaves and women they have probably never been sur- 3^^^^^ ^^ passed by the practices of the wildest tribe in ^'"punfsh- Africa. They, perhaps, indicate a mad outburst "aves°fnd against a state of lawlessness which, even in "'°'"^"" that lawless age, seemed intolerable. Among the punish- ments for theft are the very punishments forbidden as barbarous in the Roman Code. If the thief was a free woman she was to be thrown down a precipice or drowned (a precedent, without doubt, for dragging a witch through a pond). If the thief was a man and a slave he was to be stoned to death by eighty slaves, and if one of the eighty missed the mark three times that one was to be whipped three times. If the thief was a female slave, and had stolen from any but her own lord, eighty female slaves were to attend, bearing each a log of wood, to pile the fire and burn the offender to death. It would be impossible to estimate, at its true value, the moral effect of such scenes as this, but they aid in explaining the cruelties of later and comparatively civilised ages. It is only wonderful that any tenderness or any mercy survived, and that the callousness of those terrible days was not transmitted to all the descendants of the men and women who were compelled to take part in such horrors. Fire, as an instrument of punishment, was, as we have seen, not unknown to the Romans, nor, perhaps, even to those whom they vanquished in Britain. But to make women the special objects of this torture, and, worse still, to teach them hardness of heart in the office of executioner, were refinements of atrocity re- served for the barbarians who planted themselves in the provinces of the Empire. E 2 52 EARLY TRIALS IN ENGLAND. [chap. At the time when punishments for petty offences were worse than brutal, the methods by which criminals Primitive ^^^^ Condemned were naturally not very re- ™^^- fined. There was no distinction between offences against the Church, on the one hand, and offences against the State or the individual, on the other. Cases of theft and coining, like those of witchcraft, could be tried in a church. From the position of the clergy, as law-givers, it followed not only that the secular laws had the sanction of religion, but that religious observances, were enforced by the secular arm, if enforced at all. Not only was it declared in secular laws that cheats, and liars, and robbers would incur God's anger unless they desisted, but it was made penal to eat flesh on a fast- day, or to buy, or sell, or pursue a handicraft on Sundays or feast-days. In later times there were attempts to separate the ecclesiastical from the civil jurisdiction ; but the Royal Proclamations against eating meat in Lent, and the prohibition of witchcraft by Statutes are curious instances of the persistence of an old tradition. In these early times, if a thief was detected in the act of carrying off" what he had stolen no trial was considered necessary ; if a poor man, who could not pay a fine, he was put to death with little ceremony. In more doubt- ful cases the punishment, upon conviction, seems to have been various, and guilt or innocence was ascertained, in the case of the layman, by one of two methods of pro- cedure — ^by ordeal or by compurgation. Both would be simply ludicrous but that life and limb depended on the issue. The practical effect of the one was that the accused could be saved only by the aid of the priest ; the practical effect of the other, that he could be saved only by the oaths of a sufficient number of friends. The CHAP. I.] THE ORDEAL BY WATER. 53 repute in which man or woman was held, either by the clergy or by the neighbours, decided the question of innocence or guilt. The popular thief was certain to be saved ; the unpopular but guiltless prisoner was certain to be condemned. Fortunately for the present time no relic of these old practices survives, except the custom of calling witnesses to prove general character. The form of ordeal of which the best account has been handed down is the three-fold ordeal by water. When the test was to be applied the prisoner , ^, The Ordeal. was conducted into a church. The spectators were divided into two lines, in which the numbers were equal. One line was ranged on one side of the church, the other on the other, one representing nominally the friends of the accused, the other the friends of the accuser. Between them, in the centre of the church, blazed the fire which was to purge or to blacken. All who were present were expected to be fasting and in a state of chastity. The priest passed up and down, sprinkling each with holy water, giving each holy water to taste. To each he offered the Book of the Word, and the Holy Rood, to kiss. Meanwhile the vessel of ordeal, filled with water, had been set over the fire. Four arbiters, two chosen from either side, pronounced in due time that the water boiled — that the hour was come. The rest of the congregation, who had hitherto preserved a solemn silence, now joined in prayer to Almighty God that he would make known his will in the issue. The accused advanced to the place of trial, his arm and hand swathed in fold upon fold of cloth or linen. At the bottom of the vessel, at elbow-depth, was a stone. This he had to snatch away unscathed himself* if he could, when, perhaps, he was half blinded by the 54 FORMS OF ORDEAL. [chap. r. smoke from the burning wood, by the steam from the seething caldron, and by the fears which must have oppressed him, whether innocent or guilty. Here ended the first act of the drama. After the expiration of three days came the final ceremony, when the bandages were unwound and the hand and arm exposed. Then, if the flesh was uninjured, it was taught that God had declared for an acquittal ; but if any trace of scald appeared, the anger of heaven, it was supposed, had marked out the wrongdoer for punishment, and he suffered a sentence in accordance with the magnitude of the crime and the ferocity of the age. There was a minor ordeal by water, called the single ordeal, in which the only material difference was that the hand alone was plunged in as far as the wrist. In the trial by hot iron, too, the ceremony was of a similar character, and the hand was protected in the same manner. The accused had to lift a piece of heated metal weighing, in the single ordeal, one pound, in the three-fold ordeal, three pounds. The burn or the absence of a burn, after three days, proved guilt or innocence. Another test, and one possibly more favour- able to the criminal, was the ' corsneed,' which appears to have been reserved for the clergy. This was no more than consecrated bread or cheese. He who could swallow it unharmed was innocent, he who failed was guilty. In all these ordeals the clergy had the entire control not only of the final ceremonies but of the preliminary arrangements, upon which the issue must, in a great measure, have depended. They prepared the ' corsnjed,' and it is quite conceivable that bread might have been so prepared as to prov.e guilt; they had the accused CHAP. I.] COMPURGATION OR FELLOW-SWEARING. 53 under their care for three days before the trial. The priest enjoined a fast of three days ; the priest adminis- tered the Sacrament of the Lord's Supper; under the direction of the priest the hand and arm of the person to be tried were enveloped in the coverings which gave the only chance of acquittal by the hot water or the hot iron. The enemy of the Church or of the priest must have fared but ill in the proof by ordeal. But the priest was, in some cases, permitted to exculpate himself on far easier terms, by simply making oath on the ' housel ' or sacramental bread. In graver charges, however, it was necessary, even for an ecclesiastic, to find some fellow ecclesiastics who were willing to swear precisely as he swore, compurga- This process was extended to the layman, who, if not friendless, could escape the ordeal. He had but to find a sufficient number of compurgators, or fellow- clearers, who would make oath with him that he was innocent. The compurgation, like the ordeal^ varied according to the nature of the accusation, and with the rank of the offenders. In some cases a greater, in others a less, number of compurgators was required ; but in every case they called the Lord to witness that the oath of the person whom they had to support was clean and unperjured. Of the two methods of trial perhaps the ordeal was the less demoralising to the laity. To them (whatever may have been its effect upon the clergy) it itsdemo- ... ralising was only one form of superstition the more — a effects. matter of little moment where the forms of superstition were already numberless. But compurgation, on the other hand, could hardly have been better than organised and recognised perjury. It rarely happens to any one to S6 COMPURGATION AND PERJURY. \cs.kv.\. have certain knowledge of his own that another has not committed any definite crime ; never, indeed, except when he has been present at the time of alleged perpe- tration, and has seen either that the deed was not of the nature supposed, or was not done by the person to be exculpated. In some rare cases it is possible that all the compurgators may have had this justification, and may so have been by chance good witnesses for the defence. But from the fact that a fixed number of compurgators was always required it is obvious that the swearing was a formality, and that the idea of evidence in our modern sense was not entertained. Sometimes, without doubt, the swearers may have believed, from the general character of the accused, that he must have been inno- cent of the particular offence with which he was charged. This is the most favourable interpretation of which their oath is susceptible, but is not the natural signification of their words. They verbally, at least, swore to the fact, and not simply to their belief ; in short, they swore that which they did not know to be true. It has sometimes been supposed that out of the system of compurgation sprang our Trial by Jury. The Its relation to opiniou is not altogether without foundation, Tnaibyjuiy. ju,^^ ^.j^^ relationship is not that of mother and child. There are various links which connect the jury with the band of compurgators on the one hand, and with the fellow-swearers, who were in certain cases called upon to support the accuser, on the other. This subject will be discussed in a future chapter. It is here' only neces- sary to point out the ill effects produced by asking a number of persons to swear that every statement made by another person is true. Bad customs are easily handed down from generation to generation ; and in the CHAP. I.J POLICE SYSTEM: THE PEACE-PLEDGE. 57 system of compurgation is to be found the origin of those perjuries which, even in comparatively modern times, were the subject of most bitter complaint. It was long held an impossibility to obtain a true verdict even from a London jury. With the' practice of compurgation was intimately connected another institution which lies at the root of the whole of the early system of police in Ensfland. „ ,. ^ ' '■ o Police system. This was the Guild, which at various times JompuS™ assumed various forms, but which, in every fr4.™The form, involved the principle of association, either ^^^''^ ^ ^^' voluntary or compulsory. In the earliest form in which we have any notice of it under that name, it must have been compulsory — so far, indeed, as the law had any power to compel. The payment of a sum of money in cases of homicide, according to the rank of the person slain, has already been noticed as a prominent custom among the Teutonic settlers in Britain. The person liable, in the first instance, was of course the slayer, and, in accordance with the importance attached to the family tie, his kin were also liable with him. The death, in fact, constituted a family feud between the relatives of the slayer and the relatives of the slain, who were to satisfy or be satisfied by blood or by money. Sometimes, however, it happened that the relatives of the slayer were unable to find the sum necessary to exculpate him ; sometimes he was kinless, and sometimes the person slain had no kin' who were entitled to receive com- pensation. To meet these contingencies, which in the one case would have led to further bloodshed, and in the others would have rendered the law nugatory, there was enforced a species of artificial family bond which completed the circle of mutual liability. Certain sections S8 THE GUILDS: THE TITHING: THE HUNDRED, [chap. i. of the population were joined together in guilds, which aided the homicide who had no kin to pay his penalty, and .which received a portion of the fine when one of their own body was the victim. It is not, indeed, quite certain whether, in the first instance, guilds of this kind were associations to one of which every free man was compelled to belong, or were merely subsidiary to the great family bond, and applied only to those whom no family owned. There would, however, have been great practical difficulties in bringing the kinless together ; and it is more probable that the guild, in this sense, was an association which the law directed every one of a certain rank to join, either in his own person or by his representative — the head of the family. This it certainly was eventually, when it ap- peared as the tithing, in which all free men below a certain rank, whether in town or country, were compelled to be numbered. The Tithing consisted of ten men, who were collec- tively responsible for the good behaviour of every The Tithing, member. A crime perpetrated by any one of Hundred. them rendered the whole liable to that form of punishment which, next to mutilation and death by torture, is most prominent in all Teutonic laws — a pay- ment of goods or money. The Hundred, though in all historical times a territorial division, was, perhaps, ori- ginally a guild of a hundred freemen, just as the tithing was a guild of ten. The distinction between responsi- bility shared by the inhabitants of a district, because they were its inhabitants, and responsibility shared by a definite number of persons, who of course inhabited a definite district, is far too fine to have any persistence in barbarous times. Speculation on this subject would, CHAP. I.J THE HUNDRED AND THE MANOR. 59 however, be profitless. The essential fact is perfectly well established, that when any offence had been com- mitted, there was a responsibility incurred in the first instance by the offender, but ascending, so far as the pecuniary penalty was concerned, from individual to family and association, until the means of bearing the burden had been found. Each of these associations had its head man or pre- sident ; and, even after the Norman Conquest, each par- ticular tithing or 'frank-pledge' was known by the name of its chief. There was also for the hundred a kind of court which, so far as matters of police are concerned, was iden- tical with the Court of the Manor. Indeed, if it were not clear beyond all dispute thdt private jurisdictions existed before the Norman Conquest, it might almost be inferred that some lords of manors soon after that time usurped the power and the functions of the hundred-man. Theo- retically, the right of inspecting the tithings, or, in other words, ' the view of frank-pledge,' with the various inci- dents of that ceremony, belonged at one time to the hun- dred ; practically, it was, not very long after the Nor- man Conquest, an ordinary appurtenance of a manor. The tithing, however, in its relation to the hundred and to the territorial division, which in the end was called a manor, left not a single person in the realm (outlaws excepted) who did not, either directly or indirectly, give some kind of security to the state for his good behaviour. The landed magnate, it is possible, was, to use modern phraseology, only bound in his own recognisances — gave no security but the stake which he held in the country for himself and his household. The rest were not only compelled to find bail for themselves, but themselves to be bail for their own sureties. 6o FUTILITY OF THE FEACE-PLEDGE. [chap. i. Such was the institution which went by the name of the Peace-pledge. It was, perhaps, not established in Fuu deveio ^'^ force Until the Danes became masters of Sstem^v^der England, in the beginning of the eleventh the Danes, (.gntury. But the responsibility of the guild is mentioned in laws as early as the end of the seventh century, and can be traced downwards to the tim€ when it had become an elaborate system of police. It is true that, in the intermediate period, the simpler plan of exacting bail when a particular offence had been com- mitted was not unknown. The custom of reciprocal warranty may, therefore, have been put in force and abandoned alternately in a series of vain attempts to reform the criminal tendencies of the population. Nor is it impossible that the law may have required specific bail for each person accused of a particular crime, in addition to the responsibility already incurred by the guild or tithing to which he belonged. The necessity, however, which the Danes felt very keenly, of having some security against assassination by their subjects, caused them to define the law of Peace-pledge with clearness, and to enforce it with rigour. The free-man who could not name his tithing and his hundred was then an outlaw ; his kin had no claim to compensation if he was killed ; if accused himself he could not be exculpated by compurgation. In the penalty attached to the neglect of this law may be discerned a clue to the weakness of a system Its inherent which, at first sight, appears to render crime weakness. impossible. There is evidently a connexion between the compurgators and the tithing or hundred. The man who will not take upon himself the responsi- bilities of the peace-bond forfeits all the advantages of CHAP. I.] THE GUILD-SYSTEM AND COMPURGATION, ti the family-bond, and, of course, of the peace-bond itself. One of the advantages of the latter, there can be little doubt, was, that the fellow tithing-men, or fellow hundred- men could, upon occasion, make oath for a comrade. If they swore to his innocence, or their belief in it, the effect was that the accused person escaped, and that his peace-union did not pay. If they declined to swear, they not only exposed him to the dangers of the ordeal, or worse, but they practically taxed themselves for his offence. Thus, the Peace-pledge, though it apparently constituted every man a constable, had really the oppo- site effect of setting a reward on perjury. It is not, however, necessary to suppose that any man's compurgators, as a body, were strictly identical with any particular peace-union, thougrh his peace-union TheOuiids .. ' & r and the Corn- must almost certainly have furnished some of purgators. his compurgators. If the tithing and the hundred were guilds in which men were associated by compulsion, there were others in which they were associated by choice. The rules of some of these, as they existed before the Norman Conquest, are still extant. Like the others, they exhibit the principle of mutual insurance, which, however, is developed into the principle of mutual aid in times of trouble. The brothers, as the members were called, contributed to bear the burden when the house of one of their number was burnt. They helped to pay the fine when one of them had committed a homicide. They all had an affectionate interest for one who had the misfortune to find himself in prison. They met at stated seasons for convivial entertainments ; and there can be little doubt that they were held together by a tie only less strong than that of the family itself They professed, it is true, to respect the law, and to draw a 62 MORALS OF THE GUILDS-MEN. [chap. i. distinction between accidental or justifiable homicide, and that which in modern times would be called murder. But as they would probably not have been permitted to enjoy their organisation if they had not shown this apparent spirit of obedience, there is little importance to be attached to it in the face of other well-established facts. The effect of this double system of guilds upon the system of compurgation may readily be imagined, especially when the country was in the hands of the foreigner. To screen an offender would be, according to the social code, an act of good fellowship, according to the political code, remunerative. Thus two of the strongest motives by which human beings can be influenced were brought into action, not, as the law- givers intended, for the repression of crime, but for the escape of the criminal. The results will be made apparent, not only in the history of the time at which these institutions were most prominent, but unfortunately also in the history of many subsequent centuries. In the present age — when the use of the dagger is called in ordinary speech un-English, when assassination The Guilds is described as the crime of the foreigner or of and the & • Assassins. the Irishman — it is difficult to realise the fact that England itself was once considered almost a land of assassins. In the year 1002 the massacre of the Danes in cold blood, in time of peace, gave the sub- sequent Danish dynasty good reason to fear the temper of their subjects and to look well to the perfection of the Peace-pledge. Even if it were possible to disbelieve the chronicle in which this terrible event is narrated, and to assume that the words were written half a century after the date assigned to them, the story would still be a CHAP. I.] ASSASSINATIONS IN ENGLAND. d^ monument of the morals which rendered those times hideous. In this year, calmly reports the annalist, on Saint Brice's Day, by the King's command, the whole of the Danes in England were slain. There is a feeble attempt to justify the deed by reference to some plot which the victims might otherwise have carried into execution. But not one expression of reprobation, or even of regret, is there to soften the hard outline of the tale ; there is reason, on the contrary, to believe that the act of murder could not have been so general as the chronicler represents, and that he deliberately exaggerated its magnitude in order to make it appear more creditable to his country ! No wonder, then, that when retribution came, and England fell under the yoke of the Danes, the new rulers strained to the utmost the responsibility of the hundred, in which they might well have believed some security was to be found. But the Dane, like the Norman, must have discovered that the system of guilds was a stronger support to the homicide than to the arm of the law. He did not, like the Norman, draw a distinction between those who were akin to the victors and those who were akin to the vanquished, nor provide that the hundred should be responsible for deaths by violence in one class only. At most, therefore, he could but have obtained for his fellow-countrymen a protection from murder as great as that which was enjoyed by the native popu- lation. How great that was it is not difficult to infer even from the meagre annals of the time. As the petty kings of earlier days commonly perished by assassination, so the magnates of the eleventh century, when obnoxious to their rivals, were killed with little hesitation and with little blame to the slayer. A fine and a temporary 64 VARIOUS ASPECTS OF GUILDS. [chap. i. banishment satisfied the law and appeased the. anger of the king. Respect for human life is a sentiment which had no place in the tenth century or the eleventh. Nor when the Englishman remembers the deeds which his forefathers did, not only before the Norman Conquest but long after, has he any reason for the Pharisaical belief that his nature is not as the nature of an Irishman. Thus far the guild has been regarded in only two of its aspects — as the police-guild and as the social guild. Trade-guilds It has, however, another, and in later times. Towns. more familiar aspect — as the trading-guild. How one sprang from another, or which was the first in origin, it would, perhaps, be impossible to determine with certainty. The trading-guild appears in more forms than one — as the guild merchant, which it is difficult to distinguish from the town-corporation, arid as the guild of craftsmen. The craft-guilds do not come into notice before the Norman Conquest, but, on the other hand, they show themselves soon afterwards, and there seems to be no good reason for denying them any previous existence. An antiquity, extending at least as far back as the time of Edward the Confessor, is claimed for the guild merchant, and allowed, in the later charters to some of the towns ; the Guild-hall of the burgesses at Dover, and the Guild of burgesses at Can- terbury are mentioned in Domesday- Book. In the earliest record of the Exchequer after Domesday, the guilds of weavers appear to be regularly constituted and perfectly familiar to the revenue officers. Rude as were the earlier times, it is certain that even gold-workers attained some skill in England, and it can hardly be supposed that the country was destitute of weavers. And if it CHAP. I.J ORIGIN OF GUILDS. 65 be admitted on the one hand that there were handi- craftsmen, and on the other hand that guilds were estabHshed for various purposes, it is very difficult to believe that the guild principle was not applied to the trades. If so much be conceded the priority of any of the three forms of guild becomes a mere matter of con- jecture, and the source of the whole system must neces- sarily remain doubtful. Regarded from one point of view, the guild has a strong resemblance to the family tie of the Teutonic and other barbarous tribes ; regarded from another, it is a species of bail, which involves a principle too universally applied to be considered characteristic of any one people ; regarded from a third, it is strikingly like that institution of colleges or com- panies which was always familiar to the Romans, and which we know from inscriptions to have existed in Britain during the Roman occupation, both in the form of the religious guild and in the form of the craft- guild. It would be possible, indeed, to elaborate a very plausible argument for the development of the whole guild system out of Roman institutions rather than out of the family tie of the Germans. This, indeed, might have come to pass by two wholly distinct processes — either through a tradition handed down by the ancient Roman townsmen, or through a new introduction at the time when Roman missionaries came to restore Chris- tianity in that part of Britain which had become pagan England. The second process would fully account for the existence ot guilds in parts of Germany never conquered by the Romans. Human nature, however, whether civilised or barbarous-^ Greek, or Roman, or Teutonic — has everywhere some kind of social instinct; and the VOL. I. F 66 GUILDS, TOWNS, AND CRIME. [chap. i. common historical blunder of attributing to a race, or a country, or a language that which belongs to humanity- shall, in this place at least, not be repeated. The truth is that the guild system existed before and after the Norman Conquest, but that there is no historical evidence of its beginning. It is, however, a fact of too much importance to be forgotten that the guilds afterwards became, for a time, in one form at least, the vital principle of the towns. In the History of Crime, and of its varying forms, the history of towns and of commerce must play a Importance couspicuous part. In the occupations of the of the history of Towns in people lie their .temptations; by those occu- of Crime. patious, in a great measure, the moral standard of society is formed. With the growth of the peaceful arts crimes of violence disappear ; when government is unsettled, and men are familiar with ' war, life falls in value, and murder ceases to be regarded as a hdinous offence. To the Englishman, who lives securely in the greatest cities which the world has seen, the small beginnings of modern civilisation have a special interest and importance. The struggle of the warlike spirit against the trading spirit, of ignorance against know- ledge, of brute force against the inventive faculties, might be described as the struggle of crime against social order, had social order, in the modern sense, existed when the conflict was at its height. Those who believe that the Roman towns survived the Teutonic invasion will date the beginning of the Disputed campaign from that all-important event. They TWs'in will see in the contempt of the lord for the England, trader the inherited contempt of the victor for the vanquished. They will see in the persistence, of the CHAP. I.] ORIGIN OF TOWNS IN ENGLAND. 67 townsmen a stubbornness ihherited from the time when townsmen drove back the invader from the walls, and yielded at last only to the necessities of hunger. But it is the duty of the historian not to put forward as fact that which is mere possibility. There is no evidence that the towns were destroyed. There is a statement made by a monk that a few were at a particular time deserted. There is the fact that at no period of history had towns ceased to exist or to be inhabited in any of the great divisions of England. Beyond this all is conjecture. There are, however, some materials upon which an opinion may be formed, and which, if they are not conclusive upon the question of origin, are not without their value for the main objects of this work. The towns, as they existed before the Norman Conquest, must be regarded in their relation to the known customs of pure Teutonic tribes, as well as to the territorial divisions, and to the tenure of land which prevailed in England when Southern Britain had acquired that name. From the northern walls to the Straits of Dover, the names of Roman stations were adopted by Roman the conquerors. Where the Roman had raised chesters. walls and dug trenches the new possessor of the soil described the fortress in language more Roman than that of the Roman himself The legions of the Empire, when they settled in a British town, accepted commonly enough the British designation. To them I sea, Venta, and Glevum were enough ; to their successors it seemed necessary to add the Roman word ' castra,' or chester ; and the same places became Exanceaster or Exeter, Wintanceaster or Winchester, Gleawanceaster or Glou- cester. Of these chesters nearly sixty have survived 68 ENGLISH TOWNS WITH ROMAN NAMES, [chap. i. to the present day. Bath and St. Albans were chesters centuries after the departure of the Romans, the first being called Bathanceaster, or Acemannesceaster, the second both Verlamacaestir and Vaetlingacaestir. Other chesters again, of which the sites cannot now be indenti- fied, are mentioned in various writings between the eighth and eleventh centuries. Some important places, however, retained their Roman names without the addition of chester, or, as in the case of Bath, without a fixed and permanent addition. Among these were York (sometimes called Eoforwic-ceaster), and Dover. Lin- coln, or Lindocolonia, is the Roman 'colonia' of Lindum. London was known as London in the time of the Emperor Claudius, and as London it has always been known, except when the Romans honoured it, for its magnitude, with the additional title of Augusta. The persistence of the word ' chester ' in every part of England is the more remarkable from the fact that when Britain returns again into the light of history the land is not in the power of a single chieftain or tribe, but is divided into many independent kingdoms, which long continued to wage war one against another. They had no tie but that of a common language, which, however, exhibits some variations of dialect in the different districts. It has been believed, from the days of Hume to our own time, by historians whose works entitle them to respect, that, when South Britain was conquered by the Low German tribes, the process was one of complete extermination. Others, and among them Gibbon, have entertained a very different opinion, have admitted that the evidence upon which the belief is founded is wholly unworthy of credit, and that all the analogies to be found in Europe point to a different CHAP. I.] ENGLISH TOWNS WITH ROMAN NAMES. 69 question which involves a long train of scientific reason- ing. Even a summary of the arguments upon either side would be out of all pi'oportion to the value which any result would possess for the objects of this history. A critical examination of the historical authorities, a care- ful estimate of the value of language as a criterion of race, a discussion of various anatomical and psychological problems, an investigation of the length of time required to effect a change of physical characteristics by means of climate and soil are all necessary branches of such an enquiry. This is, therefore, not the place to deny that although the German barbarians, when they had but the Rhine to cross, failed to extirpate the Gauls, they could cross the German Ocean in sufficient numbers to extirpate the Britons. Still less would it be worth while to enquire by what means the invaders discovered the names of the Roman stations after they had slain the only persons who could give them the information. Least of all would it be profitable to combat the opinion that we should attribute to mere coincidence such facts as the existence of a chief city, at the time of the Norman Conquest, upon the site and with the name of a chief city known to the Romans, and the apparent identity of Winchester, the city of second importance, with a Roman city which bore a British name. There is, however, one point upon which those who regard the Teutonic wave as a deluge may agree with those who regard it as a wave and nothing more. Even if it be supposed that the invaders, after putting the inhabitants to death, left- not one stone upon another in any town which they found in the island, it must never- theless be admitted that the towns were sooner or later rebuilt. One of three possible cases must be accepted as * F 3 70 ENGLISH TOWNS WITH TEUTONIC NAMES, [chap. i. fact : new towns were built with the ancient name on or near the ancient site, or new inhabitants occupied the towns, of which the former possessors were slaughtered, wholly or in part, or the original possessors retained their hold after the new comers had settled round about them. These are the limits of conjecture; history gives but one fact to aid it : — towns bearing their Roman names existed when Bede, the first historian, began to write, nearly three hundred years after the date which has commonly been assigned to the mythical voyage of Hengist and Horsa. Every one may imagine the events of the intervening period according to his own wishes , or prejudices, for it may be shown that the history of our towns begins at the same point whether we accept the Roman or the Teuton as the founder. The marauders who commonly gave the name of ' Chester ' to the walled towns, which excited their wonder, Teutonic sometimcs substituted ' byrig ' or ' burh ' (the Boroughs. modern borough) for that term. Thus, London was sometimes called Lundenbyrig ; and while Kent retained its ancient name its capital became Cantwara- byrig. In early times the word borough was borne by few towns as a portion of their names, but it became, as it could hardly fail to do when the language of the Romans ceased to be spoken, the generic term for every walled town. It started from very humble beginnings. It seems at one time to have denoted a hill, or a rude earthwork such as the primitive Teuton threw up as a defence against a hostile tribe. Afterwards it was used to express a more solid and permanent fort or tower, of which the Burghs in the Shetland Islands may be men- tioned as specimens. Later still its signification was extended to that of a castle or walled town of any CHAP. I.J CHESTER AND BOROUGH. 71 extended to that of a castle or walled town of any dimensions. And finally, in the long conflict with feu- dalism, it gained the complex meaning which we now attach to it. The history, therefore, of the Teutonic Borough and the history of the Roman Chester are one. Both alike carry us back to the most primitive form of .^j^^ ^^. ^^ society. A savage tribe has a quarrel with a che^erTnd neighbouring tribe, and makes its first step tonicBOTough towards civilisation when it imitates artificially the natural mound behind which it has found shelter. Out of the mound grows the idea of systematic intrench- ment on the one hand and of turret-building on the other. . From the savage tribe with its ' pah ' grows the military nation with its ' castra.' The ' castra,' at first only a temporary camp, must of necessity develope in time into the permanent camp, with all its wants and its offers of employment. Out of the permanent camp grows the walled town ; out of the walled town the city with its civilisation. Such must have been the history of Rome, such the history of London. This fact has a far more direct bearing upon the History of Crime than the question whether our blood is British, or Roman, or German. And there is not a doubt that if the Teutonic invaders learned the art of building towns and castle walls from the Romanised Britons, they had, before the Norman Conquest, applied it to new sites and modified it according to their own rude ideas. The condition of the towns before the Norman Conquest is involved in much obscurity. We have no means, except where walls still exist, of ascer- Relation of . . ■ 1 T-i *^ Town to taining their magnitude during the Roman theshire. occupation ; but the remains of temples, baths, pave- 72 THE TOWNS AND THE SHIRES. [chap. i. ments, and amphitheatres, with innumerable coins, indicate that all the civilisation of the empire had been imported into Britain. Such as the municipal constitu- tion was elsewhere the Theodosian Code tells us it was in this island ; but whether this constitution was handed down to the Teutonic invaders, or the invaders created a municipal organisation of their own, is a question which cannot be decided with historical certainty. It is easy to represent the borough as the counterpart of the shire, with similar officers and a similar system throughout. It is easy to represent the shire as the equivalent of the ' Gau ' found elsewhere — as an aggregate of Teutonic- tribes — and to trace the whole pre- Norman Government, by a series of analogies, back to the primitive barbarism in which the Germans lived according to the account of Tacitus. But it would be no less easy to represent the officers of these boroughs as officers of the Roman city, called by a Teutonic translation of their Roman name. The counterpart of the town would then be found in the shire ; the officers and the organisation of the shire could then be represented as borrowed from the town, and the men who owed suit to the County Court, as imitators of the Roman decurions. While, however, it is thus easy to heap conjecture upon conjecture, there is one fact in the relations of town to shire which may, perhaps, afford an indication of the power possessed by towns at a very early period. In the midst of all the disputes of antiquaries it is certain that the shire did not commonly give its name to the town, and that, in a very large number of instances, the town gave a name to the shire. York, Lincoln, Leicester, Chester, Worcester, Gloucester have not only preserved in their names the recollection of Roman influence but CHAP. I.] THE PRIMITIVE TEUTON A TOWN-HATER. 73" have extended them to the shires which constitute a very large portion of England. Even where the name of the town is not Roman, whatever may have been its origin, the same principle is seen in operation ; and the only exceptions to the ordinary rule of nomenclature are found in the few shires retaining the name of some settlers who at one time enjoyed an independent government. The German of the time of Caesar and of the time of Tacitus hated the very thought of living in a town. His ideas of life, virtue, and happiness were Contrast simple. To fight an enemy and carry off primwve*^ plunder, to make himself drunk when the battle the^xo^^"-'* was over, to remain drunk so long as the spoils afforded him the means, and then to fight and drink again — these were the objects of existence, and to attain them in perfection was to be a good man and true. Work of any kind he considered degrading to his noble nature, fit only for slaves and women and children. He dwelt sometimes in a cave, sometimes in a hut plastered over with mud. He despised architecture ; and mortar and tiles were unknown to him. A shapeless log of timber for a wall when he built a hovel, dung to keep him warm when he descended into his cavern, some flocks and herds, out of which he might pay a fine when he had committed a murder, a horse and arms, with which he might go to battle, were all the luxuries which he desired. This, according to Tacitus, was a human being of a far higher type than the civilised, but corrupt, Roman ; this, according to others, was the builder of our towns, the founder of modern society. It matters, however, but little whether it is to him or to the Roman that we are to look for the beginning of our civilisation ; it is but a question of a few centuries. The Roman himself did ^4 ORIGIN OF OUR COINAGE. [chap. i. but pass a little earlier through the stage of barbarism in which he found the Teuton. One of the most important points in which the rulers of England before the Norman Conquest differed from The Teuton the primitive Germans of Tacitus was the use in possession ,- . • • i • i of a coinage, of coiH. Among the scanty notices which we possess of the towns during this period not the least important are those which show that they had the privi- leges of the Mint, or were compelled to undertake its duties. Thus it happens that in the early Institutes of England we find human life appraised not in horses and cattle, but in shillings and pence. This, perhaps, may be regarded as the second stage of civilisation. But, though in itself only one step above the custom which it succeeds, it is a step which could hardly have been made without the operation of causes wholly distinct from any which are known to have existed in the social or political or- ganisation of the Teutonic tribe itself. There is no need for coins where there are no towns and no commerce ; and to the primitive Teuton town-life seemed to be nothing less than pollution. It is true, that wherever he was brought into contact with Roman civilisation he immediately abandoned his prejudices and possessed himself of money as often as opportunity offered. There is no doubt that on the continent the -great change in the conditions of life which is implied in the adoption of a coinage was effected for the German through the in- fluence of the Roman. Analogy points to a similar process in Britain ; and there must have been either a similar process or one which it is far less easy to com- prehend. But in the absence of all documents which deserve to be called historical, it would be unsafe to make a definite historical statement. The facts which are CHAP. I.] ORIGIN OF ROADS, BRIDGES, AND WALLS. 75 known with certainty are few in number and separated by wide intervals of time. They may be summed up in a sentence. The Germans when free from external influence had no cities, no trade, no objects of barter except flocks and herds, nothing but live stock with which they could even pay a penalty ; the Romans left Britain with numerous towns, with flourishing arts, and with a coinage ; some centuries later the governing powers used a Low German dialect and paid their penal- ties, sometimes at least, in money coined in towns, which were still numerous, and many of which were still more or less Roman in name. The art of coining was not introduced by Augustine or by his foreign successors, because there are in existence coins belonging to the period between the Teutonic invasion and the coming of the Roman missionaries. In Britain, as elsewhere, the possession of towns and of money was necessarily accompanied by another ele- ment of civilisation — a tax for the common good. The Teuton in Wherever the Teuton gained possession of a w°aurbridget fragment of the Roman Empire, a species of ^""^ ''°^'*^" tenure began to prevail which was not only unlike any known to the ancient Germans, but founded on a principle altogether opposed to their primitive ideas. Having been previously a hater of towns, he imposed upon all the lands which he acquired the burden of maintaining town- walls or castles as well as the bridges and roads which sustained the communication from one town to another. It is, indeed, difficult to understand how the roads could have continued to be used if the towns which they connected had been destroyed. The fact, however, that the Roman roads were adopted by the successors of the Romans is not to be disputed ; and in that fact lay, during 76 PRIMITIVE LAND-TENURE. [chap. i. many centuries, almost the only hope that civilisation might one day be revived in Britain. The discordance which may be observed between these indications of a more advanced civilisation and the Change in his barbarity of the criminal law assumed also a ™ecttTiani-' Variety of other forms, and affected both town and country. When the Teuton began to per- mit the existence of towns, and even to live in them him- self, he began to understand that an individual might possess, in addition to horses, cattle, and sheep, some property of his own as distinguished from the common stock, and that such possession might extend to land as well as to manufactured goods and coin. But the tra- ditional method of dividing land, which has been acquired by force, could not be at once thrown aside ; and thus when England first appears in history, after the Teutonic conquest, her soil is divided in a manner which shows a conflict still hardly decided between the primitive notion that land belongs to no one, or to the tribe, and the notion that one man may hold a portion of it if he can. That land, which has been acquired by an unsettled tribe through a common effort, should be held in common is a natural consequence of the mode of acquisition. Landiieidin The custom has existed among the Aryan- evSr°primi- Speaking nations from the Indian Ocean to the Atlantic. But it has been by no means restricted to a race or a language. When the Israelites entered the Promised Land a division was made into as many portions as there were tribes to claim a share ; and in America, before it was conquered by the European nations, it is said that the Aztecs held their land in com- mon, tribe by tribe, In the village-communities of India little or no progress has, even now, been made CHAP. I.] THE TEUTONIC TRIBE AND MARK. 77 beyond this primitive state of society. Elsewhere it has been followed by a complete or partial subdivision, among individuals, in the first instance of arable land and after- wards of grass-land and wood-land. But the original barbarism has seldom failed to leave a trace in the prac- tices of civilised life ; and thus common of pasture was an institution familiar alike to Italians and provincials who lived under the Roman Empire, and to the churls and serfs who lived immediately before the Norman Conquest, as it is to the peasants of our own day. The Germans, in early times, constituted no exception to this general rule. Among them a ' mark ' was a ring of waste or forest surrounding a community. The Teutonic . 'Mark' and which tilled, by means of its slaves, as much Tribe, arable land as was sufficient for its own support. Over the waste or forest the families constituting the tribe or clan had common rights. In the central arable land each had a severalty, or individual proprietorship, which was apparently shifting, rather than permanent or hereditary, in the time of Tacitus. It is probable, however, that each head of a family had, as soon as tillage became a recognised institution, a right to a certain definite measure of arable land for the support of himself and those who were dependent on him. But the fertility of any par- ticular plot would, when the principles of agriculture were unknown, soon be exhausted ; he would thus be compelled to occupy different spots at different times. This species of shifting severalty is the intermediate stage between possession in common and hereditary possession by private persons. It is, from the stage be- ^ •'' '■ '■ tween tenure nature of the case, excessively difficult to pro- in common 3,IIC1 Lclllirc Hi nounce where one begins and the other ends, severalty. The line which distinguishes the right to a particular 78 EARLY LAND-TENURE IN ENGLAND, [chap. i. section of land, of a particular size from the right to a section of land of a particular size but not in a particular spot is so dimly drawn that it cannot be followed in its whole length. It is probable, however, that when men discovered the advantage of letting lands lie fallow, and when there was an abundance of land to divide, the head of the family received an allotment sufficiently large to .support him and his, not only for one year, but per- manently. As soon as this was done, whenever it may have been, the shifting- severalty had given place to a severalty in permanence, and a blow, apparently slight but really severe, had been struck at the whole principle of tenure in common. In England, after the Teutonic invasion, there seems to have been recognised a common property in land in Common two different senses. There was a common land in England. right of mast, turbary, and pasture m the un- enclosed lands ; and there were, at the same time, lands called ' folc-land,' which belonged to the state, but which, before the Norman Conquest, the state could grant for a life or lives, and even in perpetuity, as the reward of good service. ,By degrees, however, the common land diminished in quantity as parts of it became the property of individuals ; and with the land the allodial lord acquired many of the privileges and functions which had previously been entrusted to the elect of the tribal assembly. For this reason, as well as others, it has been sug- gested that the great land-holder — the lord of the Origin of mauor — was developed out of an elected, and the private land-holder, afterwards hereditary, head man of the tribe or clan. In some instances it is probable enough that this was his origin, but the principle must not be carried tod CHAP. I.] THE FIRST TITLE TO LAND. 79 far. The early existence of towns, whatever their origin, and the adoption of the Roman roads preclude the possibility that the system of living in isolated tribes, sur- rounded by a mark,, could have been universal. There were, without doubt, waste lands and forests in abun- dance, yet their continuity had been broken by the Roman engineers and the builders of the Roman towns. The great lord, therefore, though he may sometimes have been no more than the hereditary head man of his tribe, may also have sprung sometimes from a different source. When the invaders from Germany effected a settlement in Britain it is not improbable that some of the chieftains, with their select conipanions, may have imitated the customs of those whom they dispossessed in taking a share of the soil, and perhaps even a villa to themselves apart from their followers of a lower grade. This, however, is a matter of little moment. The ancestors of the Romans had, no doubt, once been nomad tribes, enjoying their hunting grounds in common. They had passed through phases of life to which the Teuton was yet a stranger, but which seem inevitable in the existence of every people capable of civilisation. Acquisition by force, in one form or another, either by individuals or by communities, constitutes the first title to all land in England. And where all Acquisition inherited the traditions of those who believed to°and tong 1 ... . . the best title that acquisition was meritorious, and not least '<> land. meritorious where most violent, community naturally became no less jealous of community than lord of lord, or petty king of petty king. The spirit of invasion, handed down from the past, infected the whole of so- ciety from its greatest divisions to its least. War was its normal condition — if not the war of the little, the 8o GROWTH OF PRIVATE JURISDICTIONS, [chap. r. war of the great. Where the local customs of one place differed from those of another in all respects but one, they at least agreed in recognising the rule of the strongest ; and though the idea of peace throughout the realm did somehow become possible to the rulers, and an attempt was made to secure order by the peace-pledge or system of mutual bail, nature and habit proved far stronger than law. The very mode of settlement adopted by the invaders and their descendants must have given increased energy to the old love of combat. The great owners became the natural enemies of those who held state lands for a term, or who had common rights, and those who had common rights the natural enemies of the great owners. All were alike ready to encroach or to resist an encroachment ; and even in far later times it will be seen that a township would some- times assert a petty privilege by force. Out of these conflicting elements grew many of the anomalies of land- tenure which have descended to our own time, and especially the manor, with the various common rights claimed by the tenants. It has been well remarked by one of the greatest admirers of Teutonic institutions that the right of private Connexion '^^'" ^^^ the foundation of Teutonic (he might of'priiate^^' have added of all semi-barbarous) laws. That, ^'^^' together with the blood-tie, produced the system of compensation for murder. That was, in theory, as- serted equally by the lowest freeman and the greatest, lord. That, however, it was which took the little power they possessed from the weak and gave it to the strong. That, represented as the free-man's inheritance, was pre- cisely what converted the free-man into a dependent. That was long the greatest obstacle to personal liberty, cHAf-. I.] THE RIGHT OF PRIVATE WAR. 8i the support of slavery, the greatest discouragement to industry, the enemy of all order, and even of strict military discipline. But that was the privilege which the great holder could assert on a great scale. He could insist on the appeal to arms against a neighbouring lord, or against the king. He would accept a grant of the public land or folc-land from the King and Witan, and consent to have it elevated to the rank of book-land, or land of which the ownership was certified in writing'. But he trusted little to the security of books ; and long after the Norman Conquest he would take by violence his neighbour's land, and the parchments which proved his neighbour's rights. He would submit to the decision of that which has been called a court — if it happened to be in his own favour. But the strong arm gave a better title than any deed of grant or court of thanes ; and the primitive mode of taking possession was neither forgotten nor allowed to fall into disuse for many centuries after the time now under consideration. It seems indeed that out of the first barbarous seizure of the soil grew one of the maxims of the common law — that actual entry is necessary to possession. Thence came the forcible entries of later times, which statutes long failed to repress, and which would never have been repressed had not a power stronger than legislation come to its aid. Thus, sooner or later, the descendant of the rude marauder began life as a great landholder, prepared to retain by the sword that which the sword had won for him, and by the sword to win still more if he could. Thus the smaller holders were, in those lawless times, altogether swallowed up by the greater, or only permitted to exist by a sacrifice of independence. Thus it came to pass that there were king-makers before the Earl of VOL. I. G 82 PRIVATE JURISDICTIONS [chap. i. Warwick, and even before the Norman Conquest — that a Godwin was not less powerful in relation to the king than any of the strictly feudal barons. The power which could be used to raise or depose a king was, in fact, only the territorial power which a lord, or a combination of lords, could wield against another lord, or another com- bination. Within a society such as was the clan within its mark, such as are village communities in India, there were Origin of necessarily, as indeed there are in every savage Private Juris- ., , dictions. tribe, the rudiments of a court of law. If the chief did not treat all his inferiors as slaves, and exercise absolute power over limb and life, there was an elected head-man who presided at certain assemblies in which matters affecting the community were discussed. The disputes of those who held adjoining plots of land, and such petty thefts as it was possible to commit in a society so little advanced, were brought before him. In this, of course, it is easy to point out an analogy not only to the hundred court, but also to the manor court of later times. Not the least important, indeed, of the powers acquired by the private landholder was that of private jurisdiction. Little is known of its history before the time of the Norman Conquest. But the technical terms which the conquerors were compelled to adopt, which belong to the language of the vanquished, and which remain untrans- lated in the Latin treatises of the Norman lawyers, give sufficient evidence of the institution. The gallows for hanging men, and the pit for drowning or half-drowning women, were among the most cherished appurtenances of the manor, or of its prototype, as it existed before the year 1066. The lord set great value upon his privilege of holding his own court, and not less upon his privilege .CHAP. r.J IN TOWN AND COUNTRY. 83 of hanging his own thieves. Even when the offender had committed a theft without the limits of the land held by his lord, it seems to have been in some places an estab- lished custom that he was to be brought back and hanged upon the gallows which his lord had provided for him. These pi-ivate jurisdictions were so numerous as to form a conspicuous feature in Domesday Book, which shows not only that the lord of the manor had his Their diffu- 1 TV T r^ ^'°° ^ town equivalent before the Norman Conquest, but and country. that the principle which he exemplifies had extended itself even into the towns. Stamford and Lincoln had each twelve magistrates with power (in the case of Lincoln at least hereditary) to hold their own courts. In Norwich, Canterbury, Huntingdon, Hereford, and other towns, private individuals had a still more independent authority. The two largest towns, London and Win- chester, are not mentioned in the record, but their subse- quent history indicates that they were not, at the time of the Norman Conquest, free from the curse of little lords with their little tribunals. A right of trying criminals was attached to the ownership of Baynard's Castle in London in the time of J ohn, and claimed long afterwards by the descendants of Robert Fitz- Walter. Not the least of the privileges which he enjoyed was that of drowning in the Thames all traitors taken within the limits of his territory. It cannot be satisfactorily decided by direct evidence how far the towns themselves, in their municipal capacity, possessed jurisdiction before the Norman Con- Municipal quest. There was, however, in every borough J""^<^"="°°=- a moot or court which probably resembled that of the hundred, and had power at least to give judgment on G 3 84^ THE HIGHER JURISDICTIONS. [chap. i. minor offences. In the towns, as in the rural districts, the peace-pledge was rigorously exacted, and there must have been some power similar to the hundred court to inspect each union of ten. The towns, like the counties and hundreds, had their reeve, a part of whose functions was, in all likelihood, to preside, or at least to take a pro- minent place, in some kind of court. It is worthy of remark, too, that in London, the wards, of which the con- stitution must have been long anterior to the Norman Conquest, act afterwards precisely as the hundreds act in criminal enquiries. None of the courts of which there is any trace before the Norman Conquest afford any indication that they were Feebleness of governed by fixed principles, that they observed jurisdictions, uniformity of procedure, or that any legal know- ledge was required in the persons who presided over them. To the last, every shire was a little kingdom in itself, jealous of its own local privileges. The Bishop, with the chief lay officer in each, sat twice a year to trans- act the chief judicial business of the district. Their court was called a meeting, which certain inhabitants of the shire were expected to attend. They had, in a certain sense, cognisance of the greater criminal offences, and decided civil causes, so far as it can be said that civil causes were legally decided at all in those primitive times. Beneath the court of the shire was the hundred court which had final jurisdiction only in minor cases. Above it was a higher jurisdiction, corresponding in constitution, perhaps, to the King's Court under the earlier Norman kings, but acting apparently only as a court of appeal. These matters are, however, excessively obscure, and the scanty details here given are barely established by a comparison of the few contemporary documents with the CHAP. I.J GENERAL VIEW OF SOCIETY. '85 institutions of a better known period. But the actual feebleness of all higher jurisdictions may be inferred from the number of persons who had private jurisdictions of their own. We who live in the nineteenth century, though we may have as much, have no more in common with the men who lived in Britain between the sixth General view century and the eleventh than an accomplished En§andfrom and humane gentleman has with the rough and J^to'tLr"' 11 111 1 • A_ eleventh. cruel and ungovernable boy whose existence may have been continued in his person. We have all been taught, in the nursery, to regard Alfred as a hero, and to set before his name the epithet Great, popular vene- For the age in which he lived he was truly ASred°"the great — great in comparison with the excessive littleness around him. But nothing could be more unjust to his memory than to judge him by a modern standard, for that would be to compare the inches of an infant with those of a full grown giant. We need not believe all the dubious stories said to have been told by a Welsh monk, the biographer of this king of the West Saxon line — the stories of a monarch turned minstrel and spy in the camp of the enemy, of a warrior turned baker in the hut of a peasant. But we may well believe there was an Alfred who stood, like one of Homer's heroes, a head and shoulders higher than his fellows, an Alfred who had a dim perception that knowledge was better than igno- rance, an Alfred who had the good sense to import the literary culture in which his subjects were wanting. Still all the efforts of an Alfred served but to throw a flicker- ing and unenduring light upon the dark deeds which were characteristic of the age, and to which no one individual 86 PERSISTENCE OF THE SAME [chap. i. could have put an end had he been an Alexander, an Aristotle, or a Justinian instead of an Alfred. It is a remarkable fact that in the laws which bear the names of Alfred, of Canute, and of Edward the Ferocious Confessor — names more familiar than those of SofAifred, any other kings who ruled in England before the theTonfeaor, Norman Conquest — the same ferocious spirit is as in the laws ,. i-i r i-jj. of an earuer to be observcd as m laws oi an earlier date, as in the customs attributed to barbarians by the Roman Emperors. In one respect, indeed, a collection of laws attributed to Alfred differs from those of other kings, and perhaps affords an indication of his literary tastes. It is not, like the rest, a repetition, with slight variations, of ancient maxims belonging to Western barbarism, but a selection, from the Old Testament, chiefly of those pas- sages which sanction the demand of an eye for an eye, of a tooth for a tooth, of an exact equivalent for every injury. All such precepts are of course laid down with the simplicity of a school-boy who has with some difficulty mastered the mere letter of the text, and who has no suspicion that the spirit may be somewhat different, or that any allowance is to be made for the hyperbolical expressions of an eastern language. Alfred perceived some sort of re- semblance in words between the ancient laws of the J ews and the laws which his predecessors or their councils had drawn up for the people of England. What could be more natural than to add, as he supposed, the authority of Scripture to the penalties which were in those days believed to deter man from crime in propor- tion to the cruelty with which they were enforced ? If the laws of Alfred were not more merciful than those of his predecessors, the laws of Canute were not more merciful than those of Alfred, nor the laws in force con- ditions of life six centuries. CHAP. I.] GENERAL CONDITIONS OF LIFE. 87 under the Confessor than those of Canute. Alfred may have attempted to refornl the manners of his subjects by- severities which themselves needed reformation persistence of and taught the too easily learnt lesson of cruelty. genlraT^ Canute may have striven for empire, and dreamt through of a military supremacy of which the seat should be in London and the power extend beyond the sea, while his subjects in England were to be ruled by the sword, and rendered less dangerous than their wont by employment in war. Edward the Confessor may have believed that the piety shown in neglect of his wife, and the polish shown in the encouragement of French adven- turers could aid him in the government of the country ; but punishments under him were as brutal as they had been under Ethelbert, king of Kent, or Ine, king of Wessex, or any of the leaders who had brought Teutonic customs across the German Ocean. During the whole period from the coming of the barbarians to the coming of the Normans the chief conditions of life must have been nearly the same. They are most aptly described in the speech which Bede attributes to a pagan chieftain. ' Our existence,' he said, ' seems but a moment in the life of a bird. In the stormy winter-time when the wind is howling, and rain or snow is falling thickly without, but when the hearth within is warm, and the table is spread, a sparrow flutters into the hall. It enters at one door and departs by another. For a moment only it remains in the warm and tranquil air. It flies out of the wintry blast ; in the wintry blast again it is lost to sight. Such appears to be the life of man, for we know not what has gone before or what shall follow after.' These words were used as an argument in favour of Christianity, which offered certainty beyond the term of 88, DISUNION IN ENGLAND. [chap. i. natural life, but they tell a tale of the life itself which suggested the comparison. They tell that the Roman civilisation had been extinguished in the rural districts, that glass had ceased to be applied to the private houses of men who were styled nobles, that there was not even a rough substitute for glass in the depth of winter, and that the chieftain with his followers bivouacked in a rude building — his chief idea of "luxury a blazing fire, his chief idea of pleasure an abundance of food and drink. To this condition were the inhabitants of Britain reduced, and in this condition, or one but little better, they remained save, perhaps, here and there in a monastery where some monks had been taught to write and to illuminate, and in the towns which were struggling to revive commerce, and, with commerce, civilisation. To present the aspects of life in England before the Norman Conquest as a harmonious whole would be to de- Partisanship pHve them of their great distinguishing character which'heu"^ — want of harmony. Conflict prevailed every- men together. , . ... .-.., ,, where— -even m prmciples, if prmciples could be said to exist. Every man who had power was a law unto himself. Of the towns some were strong and others weak, and that which would be true of one would be false of another. There were state laws, but the state had no power to enforce them, and the great state jurisdiction of the king and his " wise men" .could not have given any greater security than that which is to be found in a party struggle. Partisanship was in fact the only bond which held men together, the only feeling which prevented the whole population from being a population of Ishmaels, each with his hand against every man, and with every man's hand against him. Jurisdictions and courts have been inentipned in these pages fqr want qf better names ; but CHAP. I.] EXPORT OF SLA VES. 89 it must be remembered that there were practically no courts and no jurisdictions for the decision of matters of fact. The accuser and his party came before a certain assembly ; if the accused had a party sufficiently strong he also appeared and was saved by his friends. Even in the ordeal the theory at least of party and party was maintained. The guild-tie, the family-tie, and the land- tie were, in a sense, all elements of union, but in practice were, still more, elements of discord. Justice in the ab- stract was an unknown idea ; the only recognised obliga- tion in matters of dispute was to be true to the bond — whichever bond it might be. Family was the enemy of family, guild of guild, domain of domain. Each of these unions possessed a kind of collective freedom, but gave no freedom to its members. Contradiction reigned here, as everywhere else ; and when men united to escape some form of mediaeval tyranny they sacrificed the last shred of individual liberty. The position of the slave with respect to punishments has already been described. This human chattel might be sold at the pleasure of its owner, with the xhesiave sole restriction that a Christian was not to be churi. made over to a pagan ; but boat-loads of man-flesh were despatched from the ports of England, and it would be difficult to discover who became the purchasers. The position of the slave, however, was only one degree worse than that of the churl, who always stood in need of some powerful protector, and who could not safely refuse to do that which his lord commanded him. The boundary which divided the free from the unfree was so slight that the churl was always in danger of passing over it. The infliction of a penalty which he could not pay, and which none would pay for him, rendered him utterly 90 SLENDER ftEGAED FOR LIBERTY. [chap. i. bankrupt in freedom. His limbs were not his own to carry him whither he wished to go. If he left the place assigned to him it was held that he had stolen his own body. He could be summarily hanged when caught, and his life was worth nothing to his lord, or even to his kindred, unless they redeemed him. This was the fate which was continually impending over the free man of low estate if he had the misfortune to make enemies among those who had the power to save or condemn him. In such a condition of society he was naturally reckless. In the time of Tacitus the German lover of freedom would stake the precious gift in some game of chance. The custom probably survived in England ; and as every man's life had a fixed price his liberty may well have been a negociable commodity. It has often been assumed that had Teutonic institutions never been introduced into Britain we should never have been a free people. As a matter of fact, the Teutonic invaders were at least as well acquainted with slavery as the Romans : they valued independence just as much as the young spendthrift values money when he goes drunk to the gaming table and flings his wealth upon the cloth. With slavery in its worst form the barbarians* who became masters of Britain after the Roman power was The custom broken, introduced also the custom of wife of wife buying. buymg. An unmarried woman was, among them, in the position of a chattel, for the sale of which the owner was entitled to make as good a bargain as possible. It was only natural that in a community in which it was necessary to pay for taking a man's life it should be considered equally necessary to pay for permanent possession of a woman's person. The pay- ment represents, in each case, a rude attempt to super- CHAP. I.] POSITION OF WOMEN. 91 sede a primitive condition of universal violence. The two subjects have, however, not been treated together, because, in the one case, the law remained unchanged for many centuries, in the other, the law, if not the practice, appears to have undergone an important modifi- cation before the Norman Conquest. In the laws of the first Christian King of Kent the provisions for the transfer of money or cattle, to be given in exchange for the bride, occupy a prominent , , . . , , Its nature. place. The principle was carried out with the utmost consistency when the wife proved unfaithful to her owner. Nothing was then considered but the market value of the woman ; and the adulterer was compelled to expend the equivalent of her original price in the purchase of a new bride, whom he formally delivered to the injured husband. The Church was compelled to accept this, with many other discreditable institutions, when it first made con- verts in England. In the laws of a King of ^^e church Wessex, who lived at the end of the seventh rompeue'd'to and beginning of the eighth century, the pur- ^'^'^p'"- chase of wives is deliberately sanctioned ; and it is stated in the preface that the compilation was drawn up with the assistance of the Bishop of Winchester and a large assembly of ' God's servants.' The policy of the Church, however, was to persuade mankind that no civil contract was of any avail to constitute marriage, that the cohabitation of a Theciergy afterwards man and a woman was in itself unholy, and that "sed their ' influence to nothing but a religious bond or sacrament, abolish it. accompanied by the blessing of a priest, could render it inoffensive in the eyes of God. It was impossible, there- fore, that wedding by purchase could long be recognised 92 POSITION OF WOMEN. [chap. i. by religion as a binding contract (even though weddings by purchase might continue to be made) when Chris- tianity was firmly enough established to be above all danger of subversion. The provisions for bride buying accordingly disappear from collections of laws of a later date. The daughter of the free-man seems then to have been allowed, by law at least, some choice before matri- mony. She even became capable of holding property in her own right, though the strong arm of husband or kinsman must always have been necessary for its security. The marriage of priests, too, which was at one time very common, must have had considerable influence in changing the national custom, for though the accusations brought against them were innumerable, they were never accused of buying their wives, and could never have performed a public act so inconsistent with their pro- fessions. When the monastic party gained a partial ascendancy, and marriages among the secular clergy became less frequent, it was more than ever the interest of the Church to secure the independence of women. Virginity and liberality to religious houses were then extolled as the greatest of womanly virtues ; and though it may be doubted whether the persuasion of the priests was always for the benefit of the person persuaded, it cannot be denied that they rendered a service to the country when they taught men that a wife was not to be regarded in precisely the same light as a sheep, or even as a slave. Thus was effected a distinct modification of a most barbarous custom. A great price was paid for it when celibacy was extolled as a virtue ; but perhaps no price could be too great for the establishment of the doctrine that the strong have not necessarily the right to enslave CHAP. I.J CHARACTER OF THE CLERGY. 93 the weak ; and the abolition of purchase in marriage was the first step towards that end — the only step, to all appearance, which was made before the Norman Con- quest. The change of law was probably not accompanied, at first, by any change of sentiment, or even by a com- plete change of practice, but rendered a gradual change of sentiment and of custom possible in later times. For this, at least, we have to thank the Christianity of that remote age. But the pagan superstition and the pagan barbarism in which it was imbedded were, in other respects, immoveable. In theory, of course, the clergy set up a standard of morals which was opposed to most of the worst faults of the age. But the theory was by no means in character of accordance with the practice. " Peace on earth, '''^ ''''"^^^' good-will towards men " might serve as the text for some of the Ecclesiastical Institutes of the time when there was no peace and but little good-will. A simple industrious life, in which the priest, himself a workman, was to edu- cate his flock, was the ideal which has been handed down in writing. In reality, the priest took to money-getting and wenching, and was frequently rebuked by his superiors for his own ignorance. Priest became the rival of priest for tithes, bishop of king for worldly dignity. The bishop who had begun by washing the feet of the poor and by teaching the gospel in court and council remembered that his life was appraised at regal value, and that he had a seat in the ' Meeting of the Wise'; but he forgot the rest. Thus even in the eleventh century it is possible to discern the germ of discontent which made Wycliffe popular in the fourteenth, and the orthodox clergy, both secular and regular, unpopular. The con- tinuity of those causes which finally led to the ' Reforma- 94 LANFRANCS DESCRIPTION OF [chap. i. tion ' receives, as will hereafter be seen, a strange illus- tration from the History of Crime. Such was the age immediately preceding the Norman Conquest. To the greed of the savage for flocks or for Description of huntingf-gTounds had been added the thirst the inhabit- ° " ants of Eng- of the trader for wares and for coins ; but land by Lan- p°<=- the townsman had done little, as yet, to soften the manners of the rustic marauder, and force was the ruling principle within the walls not less than without. There were restrictions, and police, and punishments in abundance, watch and ward upon the highways, and watch and ward at the gates. Rven to entertain a guest for more than one night in a town was to be responsible for his good conduct. But all these laws served only to show by contrast the lawlessness, violence, and reckless- ness of the people. Life continued to be bought and sold ; property was secure only to him who had the power to hold it. A permanently settled government, which, whatever may be its form, is the truest friend to civilisa- tion and the greatest enemy to crime, was a blessing of which the idea was as yet hardly conceivable. The curse of the barbarian conquest still weighed heavily on the land ; and when Lanfranc, an Italian monk accustomed to the manners of Norman nobles and Norman clergy, became Archbishop of Canterbury, he was appalled by the manners and customs of his flock. To him a war between lord and lord, between town and town, could not, after his experience of life, have appeared an extraordinary event. To him it might have seemed wrong, but not strange, that a bishop should assert territorial or even spiritual rights by violence. To him slavery was not an unknown nor,- perhaps, even an indefensible institution. But beyond all (this there were features in the English life of. his time CHAP. I.J THE INHABITANTS OF ENGLAND. 95 which almost drove him to despair. To be the Primate, and to be the friend of the Conqueror seemed to him no compensation for the necessity of Hving in a country so unciviHsed as England ; and he addressed the Pope, in no hesitating language, with a request to be relieved from the intolerable responsibilities of his position. Let me, he said, retire again to a monastery ; better that than be the religious ruler over these godless tribes of barbarians. CHAPTER II. FROM THE NORMAN CONQUEST TO THE THIRD CRUSADE : ENGLAND AT THE END OF THE TWELFTH CENTURY. IN an age when chivalry was almost a synonym for brutality, the relations of the Normans to the Englishry led inevitably to acts of cruelty on the part of the victors First effects and of treacherous assassination on the part of of the Con- quest, the vanquished. The actors, indeed, in the events which were immediately consequent on the battle fought near Hastings had neither the will nor the powder to give accurate descriptions of the scenes before their eyes. The weaker minds were stunned ; the more active became blindly vindictive. Even the native annalists who lived at the beginning of the following century were still dazed by the shock of a battle no longer recent. With a strange mixture of resignation and spite, they magnified the extent of the disaster and attributed it to the will of God. He, they said, accomplished in the year 1066 a design which He had long conceived, and delivered over the English race to be exterminated by the merciless and crafty Normans. That mediseval tone of thought, according to which a thunderstorm was a miracle, and a fever was caused by witchcraft, naturally enough represented a successful invasion and a change of system as the annihilation of a people by fire and sword. CHAP. II.] FIRST EFFECTS OF THE CONQUEST. 97 The continuity of our history from the time which preceded the Conquest to later ages has, however, long been made clearly manifest by the industry and continuity of skill of eminent lawyers and scholars. Nor is it "'^'°''y- less easily to be traced in the crimes of either period than in the uncouth terms for which the Normans could find no French or Latin equivalent. The mass of the popu- lation hated its Norman as it had previously hated its Danish rulers, but it was in no sense altered in character. The degradation of a new foreign yoke was, indeed, added for a time to all the evil influences which had long retarded the growth of civilisation ; but England was neither better nor worse in moral tone at the end of the eleventh century than she had been in the middle of the tenth. A change, most beneficial to later generations, was effected indirectly by the army of William the Nor- man, but it was a change so slowly brought about and so little perceived during the time of its progress that there need be little wonder if the English regarded the establish- ment of a new dynasty as a misfortune beyond redemp- tion, and vaguely clamoured long afterwards for the Laws of the Confessor. For many a year the insolence of the oppressor and the hatred of the oppressed produced their natural fruits, which are independent of race, or climate, or even of civilisation. It would, however, be most unfair to hold the Conqueror or his successors responsible for the brutal punishments inflicted during their reigns. Mutilation in every form had long been the recognised penalty for trivial offences. William the First and William the Second, perhaps, availed themselves of it to preserve their forests in a manner unknown to their predecessors ; but it was in itself as familiar to the English as any institution VOL. I. H 98 PRECAUTIONS AGAINST MURDER, [chap. ii. which they possessed. The first object of the Conqueror was without doubt the security of himself and of his followers ; but he was hardly less anxious to provide for the good government of his realm in the only sense in which it could be understood in that semi-barbarous age. He rigorously enforced the responsibility of the hundred, in order to prevent the loss of French lives at the hands of English assassins ; and the English themselves were not allowed to enjoy the same protection against murder. But the assassination of the Danes under similar circum- stances may, perhaps, serve as some justification for this severity ; and in other respects the English seem to have been gainers by the systematic repression of crime to which they had never been accustomed. They confessed with astonishment, in the year 1087, that murder had become comparatively rare, and that a traveller had been known to arrive at the end of his journey without having lost his money. If deeds of violence and robberies had diminished at this time, it would be difficult to exaggerate the lawless- The Nor- ness of earlier years. It must have been not Engiishry. long afterwards that Lanfranc wrote to Robert de Limesey, then styled Bishop of Chester, in terms which show the scant respect entertained even by the clergy of those days for authority and for property. ' I sent you, not many days ago,' says Lanfranc, ' a letter, which, as I am informed, you barely read before you threw it from you in a passion. I now send you another, on the part of the king and of myself. I com.- mand you to put an end to those grievances which it is said you are inflicting on the monastery of Coventry, and to restore, without delay, what you have carried off from it by force. The abbot and monks have complained to CHAP. II.] THE NORMANS AND THE NATIVES. 99 me that you entered their dormitory by violence, broke open their chests, and seized all the goods which they possessed. You pulled down their buildings and ordered the materials to be conveyed away for use in your own diocese.' Lanfranc concludes with a rebuke, of which the practical value may be estimated from the fact that this very Robert de Limesey continued to be a bishop all the days of his life, and removed his see from Chester to Coventry, the scene of his former exploit, where he wa3 buried with the honours due to a great and good man. Such deeds, so easily condoned, may receive some expla- nation from the contempt with which a foreign bishop, perhaps, regarded native .abbots and monks. But the spirit of the age still proclaims itself, after all allowance has been made for the special' circumstances. If, however, rude Normans believed themselves to be not only the conquerors, but also the superiors, intellectu- ally and morally, of the conquered, there can be no doubt that they had some justification in facts. The practice of exporting slaves had never been abandoned in England, and William, much to his credit, sternly repressed it. There is some reason also to believe that the improver ment in the marriage laws which had been gradually effected by the influence of the Church had been in- operative upon the masses of the populace. Even after the Conquest, a letter from Pope Gregory VII. to Lan- franc, contains evidence that the barbarous custom intro- duced by the settlers from Northern Germany -Estill continued to exist. He had heard, he said, that, in Scotland, men commonly deserted their wives, and sold them too ; and he desired the Archbishop to forbid such wickedness, both there and elsewhere ' in the Island of the English.' It may be inferred from his description H 3 100 PROTEST AGAINST MUTILATION. [chap. ii. that the old practice had not yet become obsolete, that it was still possible, though, perhaps, not legally, to purchase a bride, and that if she proved unfaithful, the seducer was still compelled, probably by threats or by violence, to make restitution ip the shape of another woman bought at the same price. It is, too, but justice towards the Italian appointed by William, as the successor of the native archbishop, to Hiimanityof acknowledge that he aimed at the establish- Lanfranc. ^^^j. ^f ^ f^^. j^^^ \,^^x.2S. rule than that which contented the Norman knights. If the king, or his council, enunciated the principle that malefactors so debased as those of England should not suffer death — only because it was better that they should, as cripples, serve for a warning to the ill-disposed — it is not less true that, in the synod held at London under Lanfranc in 1075, the assembled bishops and abbots expressed their disapprobation of the maxim. It is true that there were, in later times, bishops who had no more humanity than savages, but it is not less true that gentleness and mercy were, as far as he had the power, introduced into England by Lanfranc. The amiable character of this Italian priest stands out in strong relief not only against the brutal manners Lanfranc, ^^ ^is native flock but also against the some- tcelies* what less brutal manners of the king and his around im. fQjio^gfg_ xhe Normaus • added the trial by combat to the other barbarous methods of deciding matters of fact already existing in our island. To them the duel seemed the fairest and most chivalrous way of settling all disputes ; and it may be admitted that the duel conducted on certain established conditions, in the CHAP. II.] CHARACTER OF LANFRANC. lor presence of spectators, was not inferior to the similar recognition of the blood-feud, to the practice of com- position, to the ordeal, or to compurgation. But the whole course of Lanfranc's life, and the whole tenour of his letters show what weariness of spirit he endured when he reflected on the scenes around him. He was unfortunate, so far as his own happmess was concerned, in being the most liberal, and probably the most learned, prelate of his age. He stands almost alone in the great waste of mediaeval bigotry as a bishop who possessed at once erudition, discretion, genius, and charity. He may be regarded as the impersonation of the good effects which were ultimately consequent upon the Norman Conquest He was one of the first leaders in the great literary revival, in which the most acute intellects were led on from the study of the poets and historians of Rome to the study of the philosophers of Greece. The stream of Greek thought thus poured into Christian minds, created, as is well known, a new school of Christian metaphysics, which, though it did not itself produce great results, was of great service in the develop- ment of European intellect. One of the first of those thinkers who attempted to strengthen religious doctrines by scholastic arguments was Lanfranc, Archbishop of Canterbury. It was a happy augury for future ages, that he was distinguished from those who surrounded him not less by moral worth than by mental energy. The dawn of learning was attended by the morning star of that mercy which is often the truest justice. Both, indeed, were obscured almost as soon as they appeared ; but in the end, increasing obedience to improving laws kept pace with the growth and diffusion of knowledge. Though the progress of learning, and with it the 102 LANFRANC AND THE NATIVE CLERGY, [chap. ii. diminution of crime, must in any case have been slow, it was retarded in England by the rigour with which the prelates, under the new dynasty, insisted upon the celi- bacy of the clergy. In the eyes of Lanfranc a priest's wife was a living evidence of barbarism, no less than ignorance of the Latin language ; and thus he could not attempt to improve the minds without offence to the sentiments of English ecclesiastics. To them it seemed that he offered metaphysics as a substitute for matrimony, but not that they would profit by the change. They would have been willing to accept instruction as a gift, but the price demanded was far too high. They thought it better for a man to be illiterate and the father' of a family than learned and a monk. One of Lanfranc's earliest letters to Rome contains a complaint that there existed, both among the laity and among the secular clergy, a feeling strongly adverse to the monastic life ; and he related, with horror, that the Bishop of Lichfield had not . only a wife but children, and made no attempt to conceal his iniquity. The Pope's legates excommuni- cated this incontinent Englishman, who was at last persuaded to end his days in a monastery. Thus the Church took away with one hand while it gave with the other, and added a new element of hostility between conquerors and conquered. It was not, perhaps, only a coincidence that the Conquest was effected at a very critical period in the Feudalism history of the Church. The time at which it is and the Church. commonly said that England became feudal was the time at which the Church attempted to make all earthly kings the feudal vassals of the Pope. It was not without ulterior designs that Alexander sent to William the consecrated banner which encouraged the French CHAP. II.] EFFECTS OF FEUDALISM. 103 adventurers on the field near Hastings. The change which the papal court hoped to effect in the tenure of thrones was far greater than any effected by the Con- queror in the tenure of lands. The churls were depend- ents on military chiefs before the Norman set foot on the soil ; they would afterwards have found difficulty in showing any real difference in their condition. The new superiors spoke a strange tongue and perhaps called their domains by a strange name ; but the manor had long existed, in fact if not in word, and its lord continued to be called lord in the vernacular speech, whatever the title which he had adopted himself. It will hereafter be seen that the traditions of the earlier time were handed down to reigns long subsequent to the Conquest, and account for much of the lawlessness which prevailed. It is, therefore, unnecessary to discuss the effects of that great revolution upon the theoretical position either of the land-holder or of his subordinates. Regarded from another point of view, the feudalism introduced by the Conqueror differed from the feudalism previously existing in England by its superior organisation and completeness. This had a beneficial effect, in a manner which will be explained in another page, but not simply because it was feudalism. So far as the mere relation of inferior tenant to superior lord is concerned, the effort made at the same time by the Church to usurp the supreme power is of more importance in the History of Crime and of its punishments. Gregory VII., who succeeded Alexander as Pope, assumed over the Conqueror, as over other monarchs, the authority of a superior lord. He perceived separation J t^ i ofeccle- that the organisation of the feudal system must siasticaiand ° ■' _ secular inevitably thwart the ambition of his order jurisdictions. ro4- ECCLESIASTICAL JURISDICTIONS. [chap. ii. unless the Church could adapt that very organisation to her own purposes. Bishops and abbots already did homage, and swore fealty to kings, before they could enjoy their lands ; but if kings could have been brought to swear fealty to the Pope the relative positions of Church and State would have been reversed, and there would have been but a single ruler, at once spiritual and temporal, of Christendom. William, like all but the very weakest of his successors, firmly resisted the attempted encroachment, and declined to recognise the Pope as his superior lord, on the ground not only that he had never promised any such submission, but also that none of his predecessors had sworn fealty to the predecessors of Gregory. Though, however, the Court of Rome did not attain complete success, it did, even in the reign of the Conqueror, make a great advance towards the end which it had in view. The ecclesiastical jurisdiction was at this time formally divided from the civil by charter. The line of demarcation, it is true, was never very clearly defined ; but the mere fact that courts Christian were thus established was regarded by the ambitious clergy as a proof of growing power and independence, and gave a sort of colour to the appeals, and other recognitions of Roman authority, which for many generations em- barrassed our kings. Closely connected, too, with this distinction of courts spiritual from courts secular was the strange feature in our criminal jurisprudence, subsequently knojvn as Benefit of Clergy. The exemption, however, of ecclesiastics from secular jurisdiction, never quite complete in England, had not Growth of its origin in the reign of the Conqueror. His the Privilege , . , , ^ , of Clergy. regulations had for their object the discrimina- tion of offences, and the increase of ecclesiastical authority CHAP. II.] THE MILITARY SPIRIT 105 over offenders of a particular kind. But it had long been usual for men in orders, when accused of any crime, to assert the right of clearing themselves in a manner different from that prescribed for laymen ; and the priest, when reduced to the necessity of escaping by compurgation, had fellow-priests for his fellow-swearers. Thus much was firmly established when the Danes were masters of England, and probably as soon as Christianity was itself firmly established in the country. The ancient immunity developed into benefit of clergy, as the bar- barous customs which preceded the Conquest developed or were changed into legal processes ; and there can be little doubt that the extension of clerical power about this time gave new strength to the privileges which the clergy had previously enjoyed. In this way an anomaly, which had sprung up in the rudest times, gained force enough to survive through ages of a very different complexion, and expired almost recently when every- thing was changed except itself Among the more direct consequences, not of the feudal system, but of the Conquest itself, was the erection of fortresses in every part of Eng-land. The Religious and , . . . Military Normans — superior to the subject race in ferment throughout mechanical knowledge as in military skill — Europe. naturally protected themselves by strongholds, which would be impregnable in the eyes of any native chief, while no native chief would have so secure a place of refuge in case of need. These castles exceeded, both in magnitude and in solidity of construction, all similar buildings with which that generation of Englishmen was acquainted. They had, as was intended, the effect of overawing the rebellious spirits of the neighbourhood in which they were planted ; they had also other effects, not io$ POLICY OF THE CONQUEROR. [chap. ii. perhaps foreseen, but of considerable importance in the history of our manners and customs. If they exalted the baron they also depressed the burgher ; if they gave strength to that military discipline which is in some degree a check upon criminals they also weakened those forces to which towns give nourishment, and which have a far wider and more important operation upon crime by diminishing the tendency to commit it. Military ardour received a new impulse from the success of the Norman invasion and of the policy by which its results were rendered permanent. At the same time the flame was fanned by the feudal aspirations of the Church, eager that all Christian kings should rank as captains fighting under her banner. There was nothing of which men could speak or think but wars and rumours of wars, from the Irish Sea to the walls of Jerusalem. Not only Britain but the whole of Europe was in a state of change, from which it would have been impossible for the wisest to predict the issue. It is, indeed, at first sight, a marvel that England escaped as soon, and on as easy terms as she did, from the fires that blazed upon and around her ; and, before describing the many long centuries of misery which the circuihstances of the Norman invasion and the antecedent causes rendered inevitable, it is necessary to dwell a little more in detail upon the advantages directly attending the Conquest. Even in the reign of the Conqueror himself it is possible to discern the beginnings of order, of system, of l?oiicy of the unification in matters of finance, and as a neces- DoSa^-' sary consequence in matters of law. Before ^°°^' this time it does not appear that there was any central authority which could demand an account in writing from suboi-dinates at a distance. Domesday CHAP. II.] UNIFICATION OF THE KINGDOM. 107 Book is at any rate the earliest of the returns to writs issuing from the king or his court in England. The idea of making this compilation has of course been attributed to Alfred just as the absence of thieves and the safety of gold and silver hung upon hedge-rows have been attri- buted to his reign in works written for children, or chronicles forged by monks. But the conception of one England held in a firm grasp under a single king was hardly possible to Alfred — much less a scheme, such as that which was carried into execution by the Conqueror, for showing the value and teimre of all the lands in the country. In the plan according to which Domesday was put together lies the nucleus of the plan according to which justice was administered in subsequent reigns. The King's T 1 r ■ • 111 • Court ; the Local functionaries and local testimony were Exchequer ; Fines for subordinated to that higher power which, if not crimes. in this reign, was subsequently known as the King's Court. As the first of the Public Records relates chiefly to finance, though it incidentally illustrates various other matters, so the second (if mere charters be excepted) belongs to that department of the original King's Court, which was soon afterwards called the Exchequer. This roll which was written at the end of the reign of Henry I. is hardly less precious than Domesday itself, as showing the continuance and progress of the policy by which an attempt was made to consolidate the kingdom and to give it what It had never possessed before the Conquest — uniformity in its fiscal system, in its laws, and in the method of administering them. The revenue was then to a considerable extent dependent upon the fines paid by hundreds, for offences committed within their limits, as well as by individuals. The criminal jurisdictions which io8 BEGINNINGS OF NATIONAL LIFE. [chap. ii. were not private had therefore an intimate cpnnexion with that branch of the central authority which had to deal with receipt and expenditure. In the Great Roll, as it was called, the accounts of the sheriffs of the various coun- ties were entered, and, among them, the profits to the Crown from legal proceedings. From the time of Henry II. downwards, the Great Rolls were made up year by year and preserved in the Exchequer. Before this time only the one Great Roll of the thirty-first year of Henry I. exists. But whether this is or is not the first of a once continuous series, it is, with its successors, a great monu- ment of the new notions of order and responsibility for which we are indebted to the Norman dynasty. In this Roll, too, are some indications of the system of eyres or circuits definitely established in the reign of First indi- Henry II. It is apparent that the old custom rtfe E^e°or Still survived, and that the local magnates were ircuit. judges in their own districts not only in the ancient shire-moots but also in the courts introduced by the Norman kings. Yet it is also apparent that in the latter they had the assistance of men possessing some little pretensions to legal training. One at least of those who hold the pleas travels over no less than twelve counties. The names of others appear in as many as six counties ; and though in some cases it is not difficult to perceive that the possession of land has conferred the judicial qualification, the beginnings of a most salutary change are sufficiently manifest. National life, national organisation existed as yet only in idea ; they cannot be brought into existence by an edict ; the earliest efforts to foster them must of necessity be only rude experiments. But the first crude conception of a plan with those results for its object marks the starting-point of a new era. The CHAP. II.] DIFFICULTIES OF GOVERNMENT. 109 unity of the realm is the leading principle in the scheme of the Conqueror and of Henry the worthiest of his sons ; and the principle is not restricted to the barren regions of abstract speculation, but displays itself in such action as was possible to the limited intelligence of the period. It is difficult, under the trammels of our modern language, and in the midst of our modern civilisation, to describe the difference between the successive Attempts to stages of mediaeval society. That which is but ^ntVSntou- an incipient glimmer through the darkness, if it ^ ' ^"^'^ ' is not passed over in silence, is apt from the force of con- trast to appear as a glare of strong light. The promise of improvement which showed itself in the reign of Henry I., was only a promise of improvement upon the disorganisation and barbarism of the age which pre- ceded the Conquest. It was followed by disorgani- sation and barbarism of a similar character during the civil wars between Stephen and the Empress. It re-appeared under Henry II., but it long remained a promise with little fulfilment, and was thwarted again and again by the persistence of those influences which came into operation upon the fall of the Roman empire. To deny that Henry I. or his advisers had better ideas of government than any which existed in England under the West Saxon dynasty would be to ignore all Good govem- the scanty evidences of either period. To sup- modem leLe pose that any approach towards good govern- ™p°^^' ment in the modern sense was then possible would be to misapprehend the whole character of the times. Rough distinctions between what was crime and what was not crime, rough punishments, rough and even tyrannical methods of enforcing them throughout the kingdom might be described as the ideal of perfection to which the no PUNISHMENTS UNDER HENRY I. [chap, ii best even of the Norman monarchs aspired. William the Red was a tyrant, unredeemed by any higher aims than the secure enjoyment of his rough tyranny. Henry I, was a tyrant hardly less rough, but endowed with a certain rugged sense of justice. He would not have hacked and chopped the limbs of his subjects for mere sport ; but still less would he have been deterred by any sense of pity from hacking and chopping any low-born transgres- sor of the law. Crimes in those days, and for many a generation afterwards, were committed wholesale. When anarchy Hemy I and ^^^ '^^^ Superior to monarchy, punishments the Comers. .^^gJ.g necessarily wholesale also, and brutal to boot. Apart from mere crimes of violence which were so common and so essential a characteristic of the age that no attempt can be made to estimate their number, the offence which comes into greatest prominence is that of false coining. So imperfect was every rude attempt at commerce that, even in the reign of the Conqueror, live stock might legally be offered in payment instead of money. Before the reign of Henry I. the coinage had been so little developed that the silver denarius or penny was commonly broken into halves or fourths when the sum due involved fractions of the whole coin ; and this, it should be remembered, was at a time when the purchasing power of the piece of silver must have been far in excess of that possessed by our modern shilling. Moneyers were, as they had been before the Conquest, numerous, but their art had so fallen into de- cay with the Roman Empire that money was scarce. The population, not familiar with the current coinage as we are, were easily deceived by spurious metal or light weight. Henry I. attempted to provide a remedy for CHAP. II.] MUTILATION OF COINERS. iii some of these evils by coining round half-pence and by increasing the severity of the laws relating to the mint. Under the kings of the West Saxon dynasty the loss of the right hand had been the common sentence against the coiners of false money who appear to have been generally the authorised moneyers of the various towns. Henry detected the same class offending in the same manner and, without introducing any cruelty unknown to the ancient constitution, applied to their transgression a penalty formerly restricted to offences of a different nature. The chief moneyers throughout the whole of England were convicted of making pence in which there was base metal illegally alloyed with the silver. By the king's command they were all brought to Winchester, and there suffered in one day the loss of their right hands and of their manhood. The stern and pitiless rule, of which this punishment is, a fair example was probably the best which it was possible either for king or for subjects to conceive in Anarchy dm-- England at the beginning of the twelfth re|if;'^private century. The choice lay between that and ™°^ anarchy in a greater or less degree, with the not uncommon accompaniment of a civil war. The reign of Henry I. presents a somewhat greater contrast to that of his successor than it would have presented had Stephen possessed a better title to the throne. But the dispute concerning the succession gave no more than free play to the pent-up brutality of all classes, which centuries of gradual progress alone could soften. From the time when the Romans abandoned the island, there had never been internal peace of any long duration ; lawlessness, if partially hidden for a few years, was always ready to burst forth when any temporary restraint was in the least IT2 ANARCHY DURING STEPHEN'S REIGN, [chap. iL degree weakened. The very claim of Stephen was, in itself, an indication that government according to established law, on the one hand, and obedience to estab- lished law, on the other, were not the recognised principles of action. Even the order of inheritance had not yet been setded : and when the son of the Conqueror's daughter asserted his title, the daughter of the Conqueror's son could prove her title preferable only by a resort to arms. The question which had been undecided before the Conquest — whether a brother should inherit in pre- ference to a son — was undecided still ; and the more com- plicated question which arose when Matilda and Stephen asserted each a right to succeed could be set at rest in only one way. The disruption of the kingdom, which was the conse- quence of the inevitable civil war, was rendered more disastrous by the castle-building tastes of the Norman knights. Neither claimant of the crown was strong enough to refuse a licence to fortify if asked, or perhaps even to insist upon the right of granting it. Every noble who had the means built a castle ; every holder of a castle was a petty sovereign ; each of these petty sovereigns proved himself a tyrant. Bishops and counts and barons usurped the royal authority ; each of them set up a mint of his own. Thus in a few years all the good effected under Henry I. was turned to evil. The punishment inflicted on the false moneyers lost all its terrors when every local magnate became a false moneyer for his own purposes. The improvements in the law, of which there was fair promise in the first of the Great Rolls, were checked, and for the time, almost forgotten when the kingdom was divided against itself and there was no central authority to dictate harmony in the ad- CHAP. ii.J POLICY OF THE CONQUERORS HOUSE. 113 ministration. Records, without which justice is a mockery, ceased to be written, or were destroyed ; the king's court sat no longer ; men forgot even to solemnise the principal festivals. The chiefs emiong the clergy and laity alike forswore themselves again and again, as their interests inclined them, and carried their followers from side to side as opportunity offered. Government, indeed, no longer existed, and there was no security for life or pro- perty but the will of a capricious lord, or the mercy of a merciless man at arms. Such anarchy as this, continued partly from the love of independence, which was the heritage of lords and barons both of English and of Norman blood, unification of had almost its only antidote in the policy which Jhetradit^nai had become traditional in the family of the g'onqU/or's^ Conqueror. The unification of the kingdom, '^^""^y- by making the central authority visible throughout its length and breadth, was an object of which the monarchs given to us by France never lost sight ; and, though they may have had selfish ends in view, the effect upon the laws was in the end none the less beneficial. When the articles of peace were drawn up between Stephen and Matilda's son Henry, both contracting parties were equally anxious to secure effectually the interests of the crown, which were at that time almost identical with the interests of the people. Unless the sense of the treaty has been very much perverted by the mediaeval chroniclers, it might have been taken as the expression of a most earnest desire on both sides to save the country from bloodshed, oppression, extortion, and injustice of every kind. Even the popular superstitions were treated with deference, and a prophecy said to have been uttered by Merlin, the enchanter, was carefully explained, in such a way that VOL.- I. I 114 POLICY^ OF THE CLERGY. [chap, n- no disaster might be apprehended from its supposed ful- filment in the compromise between Stephen and Henry, Good laws, prosperity, and peace within the realm, if not without, were to follow this happy agreement. In the expression of all these good intentions there was some sincerity, but there was also a strong desire that loss of power by the Conqueror's family should not be the con- sequence of the family quarrel. Much was promised to the classes which suffered most when most the great barons could overawe the crown; but the crown had every prospect of being more blessed in giving than the subjects in receiving. The class which in the end profited most by the troubles of Stephen's reign was the clergy. The interests „, . ,. . of ecclesiastics as feudal nobles were, in some This policy ' filuo'th?'^ respects, identical with those of the barons : but clergy. ^j^g clergy also constituted a party with interests of its own. As always happens when there are many parties in the state, that which holds together most firmly is best able to carry its point by taking advantage of weaknesses in the others. Thus, though in grasping at privileges for themselves, the clergy sometimes incident- ally secured a new liberty for the people, it was impossible for them to look with favour on the policy by which the Norman kings wished to consolidate the kingdom. Their hostility to it was less apparent on the surface than that of the lay nobles, but was at bottom even more dangerous. That uniformity in the administration of the law which was beginning to be regarded as the outward and visible sign of the royal authority was never the end and aim of a spiritual lord, even though he might hold the office of Chief Justiciary. While the object of the sovereign was always unity, the object of the bishops was duality. CHAP. II.] RIVAL JURISDICTIONS. 115 When they acted most faithfully as ministers, they were still more faithful to their order ; and, for that reason, when justice became something more than a mere name, it was clogged with the strange encumbrance called Benefit of Clergy. The power acquired and exercised by the clergy dur- ing the troubled reign of Stephen led almost inevitably to quarrelsbetweenthe King and the Church. Most .^.j^^ ^^^^^ conspicuous, from the crime which followed it, "^jth'^Henry was the quarrel between Henry II. and Thomas rival /urisdic- a Becket. The clerical dignitaries were eager "°"^' to uphold their dignity ; the royal authority was not yet secure. The law was so unsettled that insolence on one side or tyranny on the other might be speciously repre- sented as a desire to do right. Henry had not been many years on the throne when an Archbishop of Canterbury of his own selection opened the campaign against him on behalf of the Church. The story is differently told by different narrators, according to their prejudices or their different sources of information. There is, however, no doubt that Becket wished to carry out one leading idea, which it is easy to discern in the most contradictory accounts. Wherever the Church was concerned, or ecclesiastics asserted that it was concerned, in respect either of property claimed or of persons accused, there, according to his view, the ecclesiastical courts alone had jurisdiction. The cases first brought into dispute were apparently certain ecclesiastical claims to land and advowsons ; but the chronology of the chroniclers is somewhat confused, and as the records of the period do not supply what is wanting, it is vain to look for a perfectly accurate version. It may suffice, however, to state that in these matters the I 2 ii6 PRIVILEGES CLAIMED BY THE CLERGY, [chap. ii. archbishop asserted a final right of appeal to Rome as well as the primary jurisdiction of the ecclesiastical courts in England, and that the king denied one no less than the other. About the same time a similar battle was fought on another field. Some members of the ecclesiastical body had been accused of various offences, including rape and murder. A canon, too, had spoken ill of the king's Justiciary. Sentence of degradation had been passed in courts Christian, but, as the king believed, no sentence proportionate to the crimes. He therefore wished that clerical criminals should be punished by secular judgment. But this, the archbishop maintained, would be contrary alike to precedent and to the canon law. The king and his party maintained that, whether contrary to the canon law or not, it was in accordance with precedent. The royalists probably had in their minds the fact that the Church had not enjoyed the advantage of an actual division of jurisdiction before the Conquest, nor, perhaps, during part of the reign of Henry I. The clergy could have pointed, with no less justice, to the custom according to which the clearance of accused persons belonging to their order had long been effected by compurgation, and according to which, in the most ancient times, the com- purgators were not laymen. Here, as elsewhere, the law was in a state of transition, or, to speak more correctly, principles of law were but just coming into existence. It was impossible to give clear definitions when the first rude attempts were being made to evolve order out of a chaos : and had consciences been more tender than they were in that age, either the king or the archbishop might safely have declared that if they erred they erred in ignorance. CHAP. II.] MURDER OF BECKET. 117 The ill-feeling engendered between the king and the archbishop increased from day to day, and could not be allayed by any apparent reconciliation. As in Murder of many similar cases, the most terrible effects ^'^ ^'' were in the end brought about by the most trivial causes acting upon minds already irritated and ready to dis- regard all the dictates of reason. Henry II., sensible of the insecurity of all order in his realm, determined to asso- ciate his eldest son with him in the sovereignty. The younger Henry was solemnly crowned, but not by Becket, who, as Archbishop of Canterbury, claimed the right to officiate. In consequence of this slight the primate obtained from the Pope letters of excommunica- tion against certain bishops who had been present at the ceremony. In spite of an apparent renewal of friend- ship, this last act seems to have rankled more deeply in the king's breast than all the archbishop's previous arro- gance. He allowed, in a moment of anger, certain ex- pressions to escape him, which were construed by some members of his household into a desire that Becket should no longer exist to trouble him. They quitted the king's court in Normandy, sailed by stealth for England, met at Saltwood, the seat of one of Becket's greatest enemies, and there deliberately matured their designs. It was but a few days after Christmas Day when four knights unceremoniously entered the primate's chamber, and seated themselves unbidden in his presence. They had, they said, a very simple request to make — absolu- tion for the excommunicated prelates. Becket raised some technical objection — and it probably was not in his power to do that which was asked precisely as the knights asked it. They were retiring in a manner which caused him to enquire whether they intended to threaten i'i8 MURDER OF BECKET. [chap. ii. him in his own house, and for answer they said only that they would do more than threaten. The fact, however, that they went out seems to indicate that they had enter- tained some hope of gaining their request by intimida- tion, and that they had not yet finally decided upon the deed which followed. In those days few men had faint hearts for crime. To consult in hot blood after such a refusal as they had met, and with their recollection of the king's words in their minds, was to take the worst resolve. They soon re- turned, but found that the primate was now in the Church, at vespers. They gave him his choice — either to absolve the bishops or to die. His answer did not satisfy them, and they laid hands upon him to drag him out of the Church. He clung with all his strength to a pillar, and it became difficult to remove him without bloodshed. To one who was more persistent than the rest he applied the epithet ' Pimp.' This was the signal for a blow. His head was injured, though an attendant suffered in attempting to save him. The knights struck him again and again on the crown till it was severed and he fell, a corpse, before the altar. One of their ruffian attendants who, it is said, had taken orders, gloated over the deed in a manner which was only too consonant with the tone of the age, and was permitted by these noble companions of the king to pick out the brains of the victim with his sword, and to spread them, in grim triumph, over the pavement of the cathedral. With the action of the king and of the Pope in con- sequence of this atrocious deed the present history has Plans of legal ^o coucem. The crime itself has been de- unde? H^nJ^ scribed as an apt illustration of the acts which were possible in those times, and of which the CHAP. II.] JUDICIAL SYSTEM OF HENRY II. 119 ' chivalry ' of England was capable. It will be seen that the knights or ' chivalers ' of later times were little more merciful, little more refined. The only marvel is that in the reign of Henry II. there were any intellects suffi- ciently advanced to perceive the need of great reforms, and to design, however roughly, plans of legal improve- ment. In this respect the advantages of the Norman Conquest were beginning to show themselves ; and had Henry's immediate successors possessed his genius, or been fortunate enough to discover advisers as skilful as his, they might, perhaps, have hastened by a little — by a very little — the progress of English civilisa- tion. The quarrels with the archbishop and with the Pope do not appear to have had the effect of retarding the legislation upon which the king had resolved ; and he persevered consistently in the course which he had marked out for himself as most likely to lead to the com- plete consolidation of his kingdom. It was not in his power to see the whole of the obstacles in his way ; nor could men in those days discover the gradual operation of causes through long periods of time. To devise a present remedy for a present evil was the most that could be expected of the most enlightened lawyers ; it was not given to them to discern the causes of present evils in past ages of brutality, or to attempt a mitigation of crime by a mitigation of ferocity in the law. Nothing that the king's advisers could have contrived would have effected a great and immediate change in the manners and moral tone of the people ; but all that it was possible for men to do in such an age they did. Exactly a century after the battle near Hastings, a judicial system was promulgated in the ' Assise of Cla- rendon.' In this document occurs the first mention of tab ORIGIN OF THE GRAND fUR Y. [chap. ii. a body which, so far as criminal matters are concerned, can be directly compared with the juries of modern times. Origin of the This and the Laws of the Conqueror afford Grand jur>-. ^j^^ connecting links between the fellow-swearers of old and the jurors of to-day. According to the Assise, enquiry was to be made respecting murder, robbery, and theft, by means of the oaths of twelve lawful (free and not outlawed) men of every hundred, and four lawful men of evfery vill, in every county in the realm. Anyone whom they charged before the Justices or before the Sheriffs, either as principal or as accessary, was to be apprehended and tried by the ordeal of water. The nearest approach to this scheme which can be dis- covered in any reign before the Conquest is to be found in the ' Laws of King Ethelred,' which, in the clause now under consideration, certainly refer only to the northern part of the realm. It is there provided that in every ■wapentake the reeve and the twelve elder or superior thanes shall swear to accuse none who are innocent, and to conceal none who are guilty. But the mention of the reeve is sufficient to prove that the institution, whatever it may have been, was of a more permanent character than a mere jury. It is, however, by no means improbable that the old custom of the northern wapentake may have contributed one of the elements to the constitution of the jury on which the whole nation has been accustomed to pride itself A combination of some attributes possessed by the reeve and thanes with some attributes possessed by the fellow-swearers on the side of persons accused or on the side of individual accusers will give, in a rudimentary form, nearly all the characteristics of the grand jury. The fellow-swearers were brought together, as required, CHAP. II.] ORIGIN OF THE GRAND JURY. 121 to take oath upon one particular charge. The same reeve and thanes, on the contrary, ' presented ' charges of un- limited number from time to time, and probably during a whole year at least. If the element of permanence be taken from them, they are hardly distinguishable from the ordinary supporters of the prosecution ; if the fellow- swearers have the element of permanence added to them, they are hardly distinguishable in function, though they may differ in rank, from the reeve and thanes. The latter, too, had every inducement to exculpate natives of their own hundred, though it was legally their duty to send suspected persons to trial. They have, therefore,, a resemblance to the swearers on either side. The modern petty jury is as temporary in its nature as the ancient band of fellow-swearers. The modern grand jury is neither so temporary as the ancient band of fellow-swearers, nor has it, like the reeve and thanes, any of the permanence of a court. Like the latter, it presents a number of charges for subsequent trial ; but, like the former, it dissolves, never to meet again, as soon as the objects for which it is summoned have been attained. The intimate connection of the grand jury, as it developed itself after the Assise of Clarendon, with the ancient fellow-swearers and with the reeve and thanes, may also be inferred from a passage in the Laws of the Conqueror, which would be absolutely unintelligible if there were no explanation in the previous and subse- quent writings. It is provided that a person accused in the hundred by four, is to clear himself by the 'hand of twelve.' Hand upon holy things were the twelve thanes to place when they swore ; hand upon holy things was the rule whenever oath was made. As the twelve in the 123 OHIGm OF THE GRAND JURY. [chap. ii. one case were to swear that they would truly present for trial those who by common report were criminals, so the twelve in the other case were to swear that a particular charge was falsely made against a particular person. Twelve, it is to be observed, is a number which, before the Conquest, appears only as an exception, and in the northern shires. Immediately after the Conquest it is the favourite number in the selection of bodies which have to give a verdict of any kind. As both Normandy and the north of England had been conquered by Scan- dinavian chiefs, it is by no means improbable that some .old Norse or Danish superstition lurks under the modern preference of the number twelve for a jury. Twelve and multiples and fractions of twelve are, of course, treated with favour in laws of Germanic origin on the continent ; but the number twelve is certainly by no means pro- minent in our own earlier laws, and as certainly comes into prominence in the reign of William I. In the most important of all matters — the compilation of the laws in existence under his predecessors, which his new subjects called the Laws of the Confessor — it was decided by him and his council that the work should be accom- plished by twelve men in each county, sworn to omit nothing, to add nothing, and to change nothing. The Assise of Clarendon was recast, and in some matters extended, ten years later, by the Assise of Northampton, which supplies another connecting link between the ancient reeve and thanes mentioned in the 'Laws of King Ethelred,' and the compurgators men- tioned in the Laws of the Conqueror. At Northampton it was provided that the twelve men of the hundred were to be, if possible, knights ; but that twelve other free and lawful men would suffice. The knights correspond most CHAP. ii.J THE WAGER OF LAW. 123 clearly with the elder or superior thanes ; the other free men are only such as might have been ordinary fellow- swearers to clear a particular person under William I. The reeve and thanes, reappearing as knights, have lost the character of a permanently constituted body ; free men of the lower class, who, in the wager of law, might still act as mere fellow-swearers for a particular occasion, are permitted also to participate in the higher functions of those who make a general report upon the crimes of the district. The change which was gradually effected by the growth of juries receives also some illustration from the later his- tory of compurgation as applied to laymen. The compurga- old practice, under a new name, survived, half- wagCT^of' ^ hidden, in its original shape, long after its blood- relations had almost ceased to resemble it. The Wager of Law, as it was called after the Conquest, to distinguish it from the Wager of Battle, was not formally abolished by statute till the reign of William IV. This, as is well known, was long a recognised mode of procedure in civil cases though the extent to which it was in use can only be established by reference to unpublished records. Centu- ries after the Conquest it was the custom in some manors for those who were accused of sucli petty trespasses as killing a neighbour's sheep or pigs to declare them- selves innocent and offer the wager of law. Their excul- pation was still, as before, by a certain number of 'hands,' and twelve, in the north at least, reappears as the number most favoured. Such as was provided for the hundred in the Laws of the Conqueror was the rule of law for some manors even after the invention of printing. Common repute in the district was in all cases the nearest ancient approach to the modern testimony of 124 /URIES UNDER HENRY II. [chap. ii. witnesses, and the modern verdicts of juries. Between the courts of the manor and the courts of the hundred, there is, indeed, no real distinction, and from the customs observed in them, there can be Httle doubt, has been de- veloped the whole system of trial by jury. But both the grand jury and the petty jury differ alike from the court of thanes and from the fellow-swearers, and have assumed features peculiar to themselves of which, in the case of the petty jury, even the rudiments are hardly discernible in the features of their ancestors. The wager of law, buried among the rolls of manor courts is like those fossil species of animals but recently extinct, which, as naturalists tell us, show the descent of crea- tures still before our eyes and point the moral that modifications of organisation are necessary when the con- ditions under which we live have themselves become modified. The jury-system was, however, during the reign of Henry II., beginning to develope itself in various direc- Deveiopment tions. The Grand Assise for the settlement of system under disputes respecting land is described by Glan- throrind ' ville as a boon accorded by the king to the people on the advice of the nobles. The lawyer contrasts it with the duel, for which it was the alternative, in somewhat extravagant terms of laudation. He draws a picture of a trial by battle in such a way that it seems to possess some features more like those of the unre- formed Court of Chancery than those of the primitive resort to force. The parties could not appear in person, but were compelled to send each a champion to maintain his cause. Before the actual combat was begun there might be innumerable delays caused by excuses on either side. The poor man's substance was eaten up while he CHAP. II.] THE GRAND ASSISE. 135 was waiting for a decision ; and Glanville admits, as an educated man could hardly fail to admit, that the issue was not always in accordance with justice. With a regard for human life which few except himself possessed in that age, he regrets that, in this legal encounter one man must either be slain, or bear the name of " recreant ; " and to be a craven was to be dead in the eyes of all who could distinguish between manhood and the want of it. Each champion he regards as a single juror sworn to maintain the truth, and insists that the testi- mony of a greater number must necessarily have greater weight. In the constitution of the grand assise, as well as in the fact that it was looked upon as a concession, there is an indication that its origin must be traced to native insti- tutions. The old appeal to common repute, the old mention of the shire and of the neighbourhood, even the old family tie are impressed more or less clearly upon the grand assise. Four lawful knights of the county and of the neighbourhood, chosen by the sheriff or, perhaps, by his county court, are to elect twelve other lawful knights of the same neighbourhood, who are to declare upon oath which of the litigants has the better right to the land in dispute. If, perchance, none of those first nominated have any knowledge of the matter, they are to make oath in court to that effect, and others are to be brought in until some are found who are acquainted with the facts. If some have knowledge and others not, those who are igno- rant are to be excluded and substitutes are to be sum- moned until the number of twelve at least is made up. Should some declare for one party, and the rest for the other, more must again be called in until at least twelve are unanimous on one side or the other. All must swear i?6 PUNISHMENT OF PERJURED JURORS, [chap. ii. that they will not knowingly declare what is false or con- ceal what is true ; and nothing is held to be within their knowledge for which they have not the evidence of their own eye-sight, or their own hearing, or the words of their own fathers, or words which they feel bound to consider as trustworthy as their own. Enthusiasm for such legal machinery as this will raise a smile on the face of a modern lawyer. The jury or Partisanship rccognitors, though they have the final decision and Perjuries , , of Jurors. in their hands, are in one sense witnesses, and in another judges ; but they are also counsel and attorneys in the cause which they decide. They practically have the power to collect evidence outside the court and to give it effect by their judgment inside. There is no check upon them except their oath to tell the truth, and no check whatever upon those from whom they may have obtained information. The jurors themselves, indeed, were punished, if they were found guilty of perjury or if they confessed it, by forfeiture of goods, by imprisonment for not less than a year, and by the infamy of incapacity to make oath again in any court. But the prospect of conviction had little terror for a juryman who had sworn falsely. The old spirit of partisanship had lost little or. none of its strength, and even Edward I, was unable to eradicate it though his laws most vigorously denounced it. The guild or the neighbours would hang together, and the danger of conviction would be not for him who had sworn falsely in concert with his comrades, but for him, if any such could be found, who had sworn truly but had not been supported. The threat, nevertheless, of prosecution for perjury is an important addition to the institution of the grand assise — perhaps even more important than the assise itself. It recognises far more distinctly than had CHAP. II.] THE INQUEST OF USURY. 127 previously been recognised, the distinction between truth and falsehood, and is a step towards breaking down the superstition that whatever is stated upon oath must necessarily be accepted as true. This is an advance towards the later plan of listening to evidence on both sides and giving a judgment after comparison. But it was not until the evidence, which the jurors of the grand assise could acquire for themselves in the district, was brought into court, and there sifted, and until jurors were for- bidden to consider facts within their own previous expe- rience that there existed, even for civil causes, a true jury in the modern sense. A connecting link between the jury of the grand assise and the later jury for the trial of criminals is to be found in the jury summoned to decide whether Link between a Christian had died in the crime of usury. This As^siS^andthe offence, it seems, could not yet be made the crimina7"^ subject of a direct accusation. But if it was commonly reported that any one had practised usury there followed upon his death an inquest to ascertain whether he had repented and abandoned the practice during his life. If not, his goods and chattels were for- feited to the king and his lands to the lord of whom he held — as in cases of felony. The question was decided by twelve lawful men of the neighbourhood, who, like the twelve knights in the grand assise, made oath concern- ing the facts of the case, and possessed complete control over the possible inheritance of the usurer's representa- tives. Here, as elsewhere, partisanship must have de- termined the issue ; and usury was regarded with such superstitious horror that all who were suspected of profiting by it must have left their families almost destitute of friends. In this method; however, of trying a 128 PARTISANSHIP OF JURORS. [chap. ir. suspected person when his body was in the grave, may, in spite of its injustice and its defects, be discerned a step to- wards the jury of the coroner and the jury of the criminal court. The advance was just as great as that made by the grand assise in civil cases, but no greater. In both there are indications of an attempt to ascertain truth by evidence, but they are so slender that they might pass unnoticed if they were not seen by the light of later history. The complicated scheme for the selection of the jurors to form the grand assise was, probably, drawn up Attempts to '^'^^ the object, long unattainable, of checking thTevuTof the prevalent tendency to swear in favour of partisans ip. pgj-g^j^g rather than in accordance with facts. The interposition of the four knights between the sheriff, to whom the king's writ was directed, and the twelve who were to decide the cause, there can be little doubt, was a device to counteract the partiality of the chief administrative officer in the county. A very similar piece of legal machinery came into operation elsewhere, in the reign of Richard I., or perhaps before. The twelve jurors of each hundred, who had to make their presentments to the Justices concerning its crimes, according to the Assises of Clarendon and Northampton, were afterwards chosen on a plan obviously imitated from the form of civil procedure which had been extolled by Glanville. In the first place, there were to be selected, probably by the sheriff, possibly in full county- court, four knights out of the county at large. These four were to select two lawful knights out of each hundred or wapentake, who were in turn to select ten more knights or lawful freemen, and so to make up the jury of twelve. Here, perhaps, may be seen another attempt to apply a filter, and a vain hope that partiality CHAP. ii.J GROWING UNIFORMITY OF PROCEDURE. 129 might be left behind in one of the many layers of men through which justice was made to pass. Conspicuous above all things in these legal reforms, of which the idea belongs to the reign of Henry II., is the growing uniformity of procedure. The Attempts to level attained is by no means high, but all mity'of proce- parts of the kingdom are brought up to the same height ; and in the application of similar processes to civil and criminal cases is to be discerned the germ of an important principle, which was in the end developed into our modern system of determining matters of fact by evidence given before jurors in court. It is from this period that the growth of trial by jury can be historically traced ; it was after this period that were effected the important distinctions between grand jury and petty jury, and between jurors and witnesses. There is, indeed, some temptation to trace the descent of the petty jury from the band of compurgators, and of the grand jury from the reeve and thanes — to find for each only one parent in a single institution ; but the legal formalities existing at the end of the twelfth century forbid the acceptance of so simple a pedigree for either. The old customs, in- deed, survived the Conquest ; but they were barren till French or Italian lawyers and ecclesiastics settled the terms of their union, married them in a fashion previously •unknown, and taught their offspring to tread in new paths. The English juries of modern times — a some what numerous progeny — are all descended from a common ancestry, and, though their walks in life are different, are all partakers in a family likeness. The Assises of Clarendon and Northampton, how- ever, are remarkable for other most important articles besides those which relate to the primitive jury. Sp VOL. I. K 13° LA WS OF HENR Y 11. [chap. ii. far as the criminal law is concerned these two documents differ little, except in the greater severity shown in the General de- latter, which was drawn up after the suppres- signofthe _,, Assise of cia- sion of a troublesome rebellion. Ihe general rendon, the . Northa°^ scope of both was to provide for the appre- in"uest^o?° hension of criminals, for their safe custody Sheriffs. bcfore trial, and for their punishment when found guilty. But the difficulties which impeded the execution of this design are painfully obvious in every detail. In the first place it appears that some of the counties possessed no gaol or prisoner's cage. The deficiency was to be made good at the king's expense, and, if possible, out of the king's wood. It may easily be imagined how much the brigands of the time were impressed by the authority of the law, when they had long been accustomed to roam over whole shires in which they could not be imprisoned by the king's officers. These cages were to be constructed within the king's castles, or fortified towns, and were, probably, designed with a view not less to the prisoner's discomfort than to his safe-keeping. The sheriffs had authority to apprehend suspected per- sons, and to enter the liberties of those who enjoyed private jurisdictions in order to discharge their duties. But if they attempted to act upon their instructions it was by no means improbable that they would be insulted and violently expelled. The king's writ was thrown in the face of its bearer long afterwards ; and a clause in the Assise of Clarendon shows that the privileges of local magnates had been upheld against the royal power long before. The law was good, but to make a law is one thing, to enforce it another; and that which was difficult to the first three Edwards must have been im- possible to the first three Henries. The mode of trial CHAP. II.] ORDEAL, MUTILATION, AND ABJURATION. 131 was to be what it had been before the Conquest, with the difference that compurgation was no longer permitted in those cases which were of sufficient importance to be brought before the Justices in Eyre. Compurgation, in- deed, would have been inconsistent with the action of the twelve men who presented the accused for trial, and who would, under the ancient system, have been fellow- swearers, either on the side of the accuser or on the side of the accused. Ordeal, therefore, stood to the twelve men of the hundred in the relation in which the petty jury afterwards stood to the grand jury. It finally decided the facts of the case. He whose innocence was denied by the hot water, in a case of murder, robbery, arson, or offence against the coinage, lost a foot, and after the Assise of Northampton, a hand in addition. He was also compelled to abjure the realm ; and, by a strange provision, even those who were acquitted by the ordeal were also banished, if they were of ill fame. This is, perhaps, another faint indication of an attempt to weigh evidence, and to act upon it. The ancient system of Peace- Pledge was fully re- cognised in these Assises. The sheriffs were directed also to register the names of all those who fled from their own counties so that they might be sought through- out the whole realm. As in the age before the Conquest, no stranger was to remain more than one night in a town, unless his host would be responsible for him. Finally, all the inhabitants of England were strictly forbidden to give either lodging or sustenance to any unfortunate person who had been branded on the forehead as a heretic ; and any house which had been polluted by the presence of one of the renegades was to be carried be- yond the walls and burnt. In those cruel times, perhaps, K 2 132 THE INQUEST OF SHERIFFS. [chap. ii. the last inhuman clauses were but a natural corollary of the early institutions which had survived the change of dynasty. Conspicuous above all other provisions in these laws is that Norman policy of unification which was dear to all the Conqueror's successors. The subordination of the sheriffs, in their judicial capacity, to the higher judicial authority, is made apparent in many of the articles. In one, the duties of the sheriffs upon receipt of a summons from the travelling justices, are expressly regulated, and it is fully apparent that the intention was to reduce the local potentates from the position of in- dependent judges to that of officers carrying the law into execution under the direction of the King's Court, as represented in the Eyres. In the interval between the time whep the Assise of Clarendon was drawn up, and the time when it was confimied and extended by the Assise of Northampton, a severe blow was dealt against the territorial magnates by means of an ' Inquest of Sheriffs.' In the majority of the counties new sheriffs were appointed, and tliis was no slight change at a time when t'leir office did not ordinarily terminate with the year. Those who were displaced, and all who had held the shrievalty, since the king's last voyage to Normandy, had to find sureties for their appearance in the King's Court to answer for their past conduct. The ' Inquest' also affected those barons who administered justice either in their own franchises or in the royal demesne, and was, without doubt, intended to serve the double pur- pose of strengthening the royal power, and of allaying the bitter complaints which were now, and for many centuries afterwards, raised against all the ministers of the law.' The contemporary authors from whom it is CHAP. II.] STUDY OF THE CIVIL LAW. 133 possible to gain some knowledge of the actual state of society, show only too clearly, that the general dis- satisfaction was by no means ill-founded, and that if the Inquest of Sheriffs did not greatly improve the moral tone of the kingdom, it was, at least, justified, and demanded by the existence of wide-spread corrup- tion. The reign of Henry II. is a historical stand-point from which the past and the future may be conveniently surveyed and compared. The local and private improved le- jurisdictions which had grown up after the fall ^^ ^ "cation. of the Roman empire were yielding slowly and sullenly to the institutions which men who had studied the Roman civil law believed to be better alike for king and. people. It was not, indeed, because a copy of Justinian's Pandects had been discovered at Amalfi in 1 1 30, that new ideas had travelled to England, and that Oxford had begun to instruct her pupils in the legal lore of a civilised people. The Roman traditions had never been entirely lost on the continent, and they could not fail to produce their effect upon our island when the Norman rule brought it under the influence of French lawyers and Italian ecclesiastics. The civil law, however, was not yet applied in practice, for it could not easily be harmonised with the feudal tenure of land, or with the native methods of trying and punishing criminals ; and commercial contracts had not yet assumed sufficient importance to demand a special mode of procedure. But it was no small gain to the country when a school of law was established, and when men trained by the study of the Roman jurist began to deal with the hideous con- glomeration of inconsistencies, which, under the name of local customs, had survived the Norman Conquest 134 OPPOSITION TO LEGAL IMPROVEMENTS, [chap. ii. The subject people, always petitioning for the Laws of the Confessor, were not unnaturally opposed to any General inuovation. They understood perfectly well chin"esin° ^^^^^ ^ '^^^^^ °f ^^ Justiccs was attended by the law. ^j^gg which were, in many cases, unjust, and were engines of extortion ; they could not understand that out of the plans put in operation by Henry II. there would one day be developed a system of justice under which impartiality would be a matter of course, and under which not a Judge upon the Bench could even be suspected of corruption. To them a new tribunal seemed only a new torment ; the reason was not that the new tribunal was not better than the old, but that the old had been so bad as to appear worse than none. The robbers and outlaws, a very numerous class, were averse to any institutions which might render robbery more difficult ; the barons, accustomed to hold little king's Courts of their own, had no wish to see their power swallowed up by the greater King's Court at West- minster, which was putting forth suckers in all directions ; the under-tenants, not too well content with the exactions of their superior lords, perceived in the eyres only a device for making them subject to two masters instead of one — for flaying them after they had already been shorn. In those days it does not seem to have occurred to any one that he could individually be the better for law and order firmly established throughout the country. The old legal formula by which jurisdiction was conferred, was incom- plete without the word ' tol '; and with toll the idea of jurisdiction had become inseparably associated. To be left to himself, to take what he could, and to hold what he had, as best he might, by his own strong arm, or by the aid of his friends, was still the Englishman's ideal of life. CHAP. II.] CAUSES OF THE OPPOSITION. 135 For the past he had all the stolid reverence of ignorance ; for any attempted change he had no feeling except sus- picion ; for reforms designed by a foreign dynasty he had but one epithet, ' outlandish ' ; and that was sufficient to stamp them as prejudicial to his interests. The re-intro- duction of civilisation was thus beset with almost insuperable difficulties. The best devised measures, if they effected a benefit in one direction, could not fail to do harm in another. The law-giving class, while improv- ing its own intellect, was rousing the evil passions of those whom it was attempting to govern. Those for whom a blessing was intended obstinately regarded the blessing as a curse. The barbarism of the past was considered an inheritance to be carefully preserved ; and he - who attempted to remove it seemed, in the eyes of the English, to be a Jacob attempting to deprive them of their birth- right. It is only the persistence of this habit of thought, fostered by almost ineradicable traditions, which can explain the anomalies of later times. It was not „ ■■^ Opposition to simply because Henry III. was a feeble king ^^^y^^- that he had to limit the visits of the travelling justices for the trial of criminals to one in seven years ; it is easy, enough to perceive that they were equally unpopular in the time of his grandfather Henry II., whose force of character was insufficient even to carry out the eyres as intended after the Assise of Northampton. The Great Rolls of the Exchequer, if studied with a little patience, show how very different were these early eyres from our modern circuits, and how feeble the institution was in its early growth. An eyre, indeed, followed immediately upon the legislative decisions of Northampton, when it may be assumed that the king's appetite for judicial 136 THE EYRES. [cHaP. U. reform was strongest. But even at this favourable stage, it was two years before the justices travelled the country again with full powers ; and at the end of the reign of Henry II., the interval between eyre and eyre had already become nearly, if not quite, three years. If in the next two reigns the judicial visitations for holding pleas of land became more frequent, judicial visitations for investigating crime did not become more popular. Thus local obstructiveness held its ground against central authority, until it gained its great, though temporary, victory over the King's Justices, and excluded them from every county for seven years at a time. The meaning of this persistent hostility to the authority of the crown in the higher criminal jurisdiction Meaning and was that the perpetration of crime in any degree effect of this . - . . hostility. was uot, accordiug to the popular opinion pf the time, an evil so much to be dreaded as the extortion of a judge. Its effect was that the greater the crime, the greater was the probability of the criminal's escape. Minor offences, such as larceny, fell under the cognisance of the Sheriff, whose courts were held at reasonable inter- vals throughout the year. Cases of homicide, and all other Pleas of the Crown were reserved for the king's Justices, the time of whose circuits was uncertain, and commonly so remote as to have little terror for the evil- doer. But it must be remembered that these rare' visits of Justices trained in the king's court were instituted as a remedy for still greater laxity in the administration of the law, and that if the murderer commonly escaped after the Assise of Northampton, he had still more commonly escaped before. From the fact that an eyre set in motion not more than once in two years was regarded, on the one hand, as a powerful engine for the repression of crime, and, CHAP. II.] THE FRENCHMEN AND THE ENGLISHRY. 137 on the other, as an un-Engli$h attack upon the liberty of the subject, may be inferred the state of society which the king or his advisers wished to supersede ; and the inference will be strictly in accordance with the sketch which an attempt was made to draw in the first chapter of this history. It will hereafter be seen that subsequent legislation and subsequent records point to precisely the same conclusion, and that the barbarism introduced by the Teutonic invaders of the Roman empire possessed a vitality which only the operation of antagonistic causes through many generations could thoroughly soften. In the meantime, the retarding effect of that subjection to a foreigner, which must have been felt with bitterness during the reign of Henry II., and long after- posmonof wards, should not be forgotten. It is true that f^^l^^^ an eminent official of the Exchequer is said to '^'"'^'^' have compiled a work concerning that department, from one passage of which it might be supposed that the dis- tinction between English subject and French ruler had disappeared at the end of the reign of Henry II., except among the rustics of the lowest grade. But the author of this treatise^-whose name, a.nd the time of whose existence are only matters of inferences-must, if he really lived at the period assigned to him, have been extra- ordinarily ignorant of the legal proceedings and of the records with which he should have been familiar. No- thing is more apparent in the Great Rolls of the Exchequer and in the records of the King's Court than the rigorous observance of that distinction between EngHshman and Frenchman which had been sternly drawn in the laws of the Conqueror. The hundred has still to pay for the murder of a Frenchman, is still ex- cused when the person murdered is an Englishman, still 138 DISTINCTION BETWEEN [chap. ii. bears the humiliation conveyed in the principle that whoever cannot be shown to be English shall be con- sidered in the eye of the law as worthy as though he could be shown to be French. Nor has the Conqueror's law degenerated into a mere form, according to which the hundred is liable for the violent deaths of those who cannot be identified, or for the omission of the hue and cry. The Englishry is, like the Jewry, still a term of contempt ; the life of the Englishman is of less value than the life of ja Jew. Not only has the hundred to make its ' presentment of Englishry,' when the name of the Englishman secretly "slain is known, not only is it fined when the parentage of the dead is unknown, or for concealing the death altogether, but sometimes it is detected in falsifying the facts, and incurs an additional penalty for declaring that a murdered Frenchman was an Englishman. The law-book compiled by Bracton in the reign of Henry III. shows that the old institution was still in force, and that the first point for the hundred to establish in a case of murder — or slaying without witnesses — was, whether the person murdered was English or not. Though the reign of Edward I. was one con- spicuous above all others for legal reforms and for im- provements which affected the whole legal system, the presentment of Englishry still survived, and was not abolished till it had indeed grown out of date in the reign of Edward III. — a full century and a half after the time now under consideration. To a courtier, indeed, who knew that the royal blood of England was already com- pounded of the blood of the West Saxon kings, and the blood of the Norman dukes, it may have seemed that the difference between conqueror and conquered was effaced ; it was, no doubt a common topic of conversation that if CHAP. ii.J CONQUERORS AND CONQUERED. 139 descendants of those who had held land under Edward the Confessor held the same land under Henry II., the intermediate generations had been prudent in their marriages ; and it was obvious that English birth was no longer an insuperable obstacle to promotion in the Church. But the recognition of no class except the king, the clergy, and the great landholders on the one hand, and the serfs on the other, is, in itself, an indication of the subjection in which the bulk of the English people was held. The division of classes was, perhaps, still as nearly as possible what it had been before the Conquest, but the serf had exchanged a master speaking his own language for one who was very commonly ignorant of it. The small freeholders had certain rights according to law, but, when viewed from so great a height as the Exchequer, they seemed indistinguishable in the great mass of English humanity, to which the official gave the common name of villeins. The position of the rural population naturally suggests an inquiry concerning the condition of the towns during the first century after the Conquest. As, how- The towns , , , . not yet able ever, they had not yet come into marked to exert their . . influence for prommence it will be convenient to defer the good- consideration of their growth, and of their influence upon crime, to another chapter. In this place it is only neces- sary to remark that they were beginning to receive charters, which seem to have had two distinct effects — one good the other evil. It was, in the end, most bene- ficial to the country that they acquired power, and exer- cised their power in a direction opposed to the barbarism which had long retarded their increase. But the early mode of acquisition was, in accordance with the prejudices of the time, adverse to those improvements which the 140 THE TOWNS. [chap. ii. king's advisers wished to introduce into the administra- tion of justice. The ancient practice of compurgation had no place in the Assise of Clarendon ; and the in- tention obviously was to abolish it throughout the realm, and to give uniformity to the criminal mode of procedure in every county. One of the privileges, however, which the towns-men were most anxious to secure, and most suc- cessful in securing, was that of independent jurisdiction, or, as it was commonly expressed in their own charters, that they should not be compelled to plead outside. It is thus apparent that the dread of the judge, and of his extortions, was as deeply-seated in the towns as in the country — that the word 'justice ' had become a by-word for that which all were anxious to avoid. Thus while the towns-men were, unconsciously perhaps, laying the foun- dations of a far higher civilisation, they were, unconsciously also, propping up those remains of barbarous customs which were the greatest obstacles to progress of every kind. They were supporting the principles of private juris- diction and compurgation — the one the great obstacle to the existence of a strong and united England — the other the very essence of opposition to that free and fair inquiry, without which all intellectual advancement is impossible. Yet for this mistake, which they could not have avoided, they made at last a splendid compensation, by converting their petty individual independence into national liberty, and the barbarism which had been forced on them by successive conquerors into widespread order, security, and refinement. The purpose, however, of the legislation which has been described, and the task which remained to be per- Generai state formed in the future, cannot be fully understood of society. ^ithout the aid of a more comprehensive sketch CHAP. II.] MEjRCHANT-BURGLARS IN LONDON. 141 of the general state of society than has yet been given. The actual amount of crime, and its proportion to the population, at the end of the twelfth century, cannot indeed be stated with any accuracy, but materials are not wanting for a description of the manners and customs, and of the general tone of thought, which prevailed in England. The universal want of respect for human life is shown in all the chronicles of the period. In London, where Jews were frequently massacred by cnmes pre- valent in hundreds, the streets were, after sunset, given London. up to rapine, and murder. That which would now be called crime became the favourite pastime of the principal citizens, who would sally forth by night, in bands of a hundred or more, for an attack upon the houses of their neighbours. They killed, without mercy, every man who came in their way, and vied with each other in brutality. On one occasion a band of these distinguished murderers and burglars marched to the house of a merchant. It was strongly built of stone, but the assailants were well provided with the imple- ments of house-breakers, and forced a passage through the solid masonry with their iron wedges. They sup- posed that they could then easily satisfy their thirst for plunder and blood. But the occupant of the house had been forewarned of the attack, had collected his servants, and had invited his friends to aid him. The leader of the robbers, who was known as Andrew Bucquinte, was, perhaps, related to a sheriff of London who bore the same name. Bucquinte advanced with a lighted torch and with a brasier full of burning coals ; but, while an attempt was being made to increase the light, by the aid of some candles which the practised robbers had had 142 FALSE WEIGHTS AND MEASURES, [chap. ii. the forethought to bring with them, the master of the house suddenly sprang out from his place of conceal- ment. Bucquinte attempted to stab him, but he wore a cuirass, which resisted the blow, and in another moment he had struck off Bucquinte's right hand with his sword. The rest of the band, surprised at the resistance, fled and left their leader a prisoner. In return for this desertion, and to save his own life, Bucquinte, betrayed his accomplices. Among them was one John Senex, or John the Elder, who was known as one of the richest and most influential men in London. He was tried by the water-ordeal, but -failed to clear himself. He then offered five hundred marks to the king for a pardon, which was refused, either because the sum was too small, or because the scandal was too great ; and he was hanged like thieves of a lower grade. It might be almost safely assumed, without evidence, that, when the chief merchants of London were in the habit of practising burglary and murder, the inferior traders were not scrupulously honest. There is, how- ever, no necessity to rely upon conjectures when contem- porary documents afford sufficient proof of the fact. False weights, false measures, and false pretences of all kinds were the instruments of commerce most generally In use. No buyer could trust the word of a seller, and there was hardly any class in which a man might not with reason suspect that his neighbour intended to rob, or even to murder him. The morals of the court were no better than the morals of the shop. There was no subject in which the The Court as ^est wrlters of the period took a greater delight anTrch-"'' than In the vices of the court of Henry II. deacon. Walter Mapes Archdeacon of Oxford, himself CHAP. II.] THE COURT OF HENRY II. 143 a courtier and wit, has described, with sarcasm but with evident enjoyment, the scenes of which he was a witness. He would not, he said, undertake to prove that the court was hell, but he had no fear of contradiction when he stated that the court bore as great a resemblance to hell as a mare's shoe bears to a horse's. Hell had been described as a place of torment, but there were no torments imagined by the ancient poets which were not realised in the court. If Tantalus was doomed to thirst for waters which flowed before his eyes, but which he could never taste, the courtiers were always thirsting for their neighbour's goods, which were always eluding their grasp. If Sisyphus was condemned to roll a huge stone up the side of a steep mountain, and to see it always bounding away from him when he reached the summit, the courtiers were always falling back into the valley of avarice as soon as they had scaled the mountain of wealth. If Ixion was bound to a wheel destined to revolve for ever, the courtiers also were bound to the wheel of fortune ; and no day passed in which they were not alternately elated by some worthless success or depressed by some ridiculous mishap. As there were birds of ill omen and of prey in the infernal regions described by the classical writers, so, said Mapes, there were birds of ill omen and of venaiity of prey in the court. These were the Justices, the sheriffs! and Sheriffs, the Under-sheriffs, and the Bedels, tiers. whose eyes were everywhere, and who were always careful to punish the innocent. The acceptance of bribes was the great sin of these officials, in whose behalf the Archdeacon quotes the saying of Ovid, that " giving is a proof of good sense.' Mapes confesses that the clergy were not more merciful or more just than the laymen, 144 CORRUPTION OF OFFICERS. [chap. ii. and relates a story of an abbot who became a justice, and who exceeded all his colleagues in extortion because he hoped to buy a bishopric with the spoil. The avarice of men in authority, and the eagerness of place-hunters, became a favourite theme of invective. The Foresters, especially, whose duty it was to discover and punish all offences committed upon the king's hiinting-grounds were held in the utmost detestation. The subordinates of the king's chief officers were so numerous, and bore such a character, that they were compared to swarms of locusts which devoured everything in their course, and which if by chance they left a single leaf untouched left it only to be devoured by succeeding swarms. The chief qualification for success at court was the power of making and appreciating mirth. The mental gifts which earned for our country the name of ' Merrie England,' and which afterwards displayed themselves in the writings and sayings of humorists and play-wrights were not without cultivation at the end of the twelfth century. The royal favour might be earned by a pun or a witty retort almost as certainly as by service in the field — far more certainly than by upright and honourable conduct. The courtiers who wished to distinguish themselves in the king's presence made collections of amusing stories. Geoffrey of Monmouth, the founder of historical romance, had recently died, and had be- queathed to posterity a rich mine which poets have not even yet exhausted. The deeds of Arthur and his British knights became familiar to all the frequenters of the royal palace; but Geoffrey's tales alone could not suffice for the great and ever increasing demand for amusement The camp in the Holy Land, and the city pf Rome became the two great marts for the interchange CHAP. II.] PLAYING WITH LOADED DICE. 145 of social wealth ; every traveller and every Crusader added new anecdotes to those which were already in circylation ; and every country began to learn the fa- vourite tales of its ^neighbours. The infidelities of women were commonly the nar- rator's theme, and an exhortation to avoid matrimony was the most common form of advice given by a man to his friend. War and intrigue were regarded as the two principal amusements in life, the acquisition of wealth the only object worth serious consideration. A con- sequence of this creed was that the husband frequently set a price upon his wife's virtue, and made a profit of his own dishonour. Fathers were ready to sell their daughters, and excused the iniquitous traffic on the ground that the end would be the same whether they received the money or not. The unnatural procurers avenged themselves by seducing the wives and daugh- ters of their acquaintances and employers ; they studied every art by which a mean advantage might be gained, and thought themselves most fortunate when they could fawn themselves into an office which gave them oppor- tunities of extortion and oppression. When the courtiers grew weary of the minstrel's songs and the jongleur's pranks, when they were not occupied in making love ' or discharging the office of pander, they beguiled the lagging moments by the dice, and by gaming in every form then known. Before the third Crusade there was in England no check upon the vice and no limit to the stakes. The gamester who, when young, had been defrauded of his patrimony, preyed in turn upon unsuspecting youth. He lived upon the weaknesses of human nature, watched with pleasure the trembling fingers and flushed cheeks of vol.. I. L 146 CLERICAL COURTIERS. [chap. ii. his victims, led them on by apparent carelessness to risk a larger sum after losing a smaller, and left them only when they could no longer call even their clothes their own. The dupes often discovered, when it was too late, that they had never had a chance of winning, but had been ruined by the dishonesty of their adversary. They then began to practise the arts of deception for their own advantage, lured their friends into the snare in which they had themselves been caught, and made themselves independent of fortune by loading the dice. It was from such courtiers as these that Henry was compelled to select the officers whose duty it was to Character of Carry out his legal reforms. His own court was the Clergy ac- ... , . i i • cording to the greatest impediment to his own best designs, contempo- rarie?. for the more scrupulous a man was, the more difficult he must have found all access to the king. Henry made various experiments, seeking, now among the laymen now among the clergy nearest to him, for that honesty which he never made remunerative. But he could neither discover nor create an honest Justice. Driven almost to despair by the condition of his kingdom, he selected, in 1 1 79, the Bishops of Winchester, Ely, and Norwich to be his Chief Justices, in the hope that they might check the iniquities of their subordinates. But if it was the function of the courtier bishops to see that the law was impartially administered, they must have been somewhat slow in learning their duty, for the whole country continued to suffer from the abuses against which their learning and purity were considered a safe- guard. The whole clerical body, indeed, if they grew no worse, could certainly not have grown better between this time and the end of the century. Even the amorous Richard I. was astonished at the profligacy of the men CHAP. II.] A BISHOP OF THE TWELFTH CENTURY. 147 whom he expected to set an example to his subjects. It was the custom of the secular clergy, he said, to spend the alms extracted from the laity not upon the poor, for whom they were intended, but in vice and debauchery, to pass their days in guzzling and drinking, and to deck their mistresses in gay attire, while they gave no thought to their own vestments or the books of their church. All this he could have endured, had they not carried their lust into the homes of the laymen, and added adultery to their other offences. He did not even know where to choose a bishop or an archdeacon whose character befitted a preacher of God's Word. In such sweeping denunciations as this there is, of course, some exaggeration. The art of telling the simple truth was not cultivated in the age of chivalry ; but the simple truth was that, though the social con- dition of England gave better reason for hope than at any time since the Romans had quitted the island, it was, according to modern ideas, almost incredibly de- praved. There is difficulty in realising a state of society in which one archdeacon considers it a good joke to trace the resemblance between the infernal regions and a court consisting in great part of ecclesiastics, and in which another archdeacon devotes energies and abilities by no means contemptible to scurrilous attacks upon his supe- riors, and afterwards descends to the most abject supplica- tions. Peter of Blois, Archdeacon of London, had no hesitation in describing a certain prelate as a monster of iniquity. This bishop, he said, hated honest men, took the prudent by surprise, lured the unwary into his toils, robbed the rich, oppressed the poor, never did a good action, and was a nuisance to all mankind. He would never listen to what others had to say ; he would only L 2 148 A CLERICAL BRAWL [chap. ii. consider what others had to give. He had no pity for the afflicted and no indignation against the cruel or unjust. He regarded every event as a pretext for the extortion of money by fair means or by foul. He made his demands with a shameless face ; he felt no gratitude to those who gave, he showed no mercy to those who refused. There was no human tie which could bind him, no appeal which could move him, no hope of his im- provement. Hated by all who knew him, he was him- self a hater of law and order, a despiser of good faith, a breaker of his word, slothful in action, and furious in anger. At table he rendered himself disgusting by his gluttony, his drunkenness, and his filthy language. He had no moderation in prosperity, and no courage in adversity. He cared nothing for the sanctity of his office, and had lost all capacity for friendship, all regard for honesty, and all sense of decency. It will be seen, from this specimen, that the language of the most cultivated writers of the period was as violent Thecier of ^^ ^^ Spirit of the times, for the letters of Peter ^nces ex^™ ^^ Blois do not, cxcept perhaps in superior lite- l^wlttad*^ rary skill, differ in character from those of his con- *'"■ temporaries. Nor indeed was it only in words that the clergy conformed to the manners of their age. Like their predecessors of earlier days, they would resort to main force when they saw no other means of attaining an end. Thus, it had long been maintained by the Archbishops of York, that an Archbishop of Canterbury could never justly claim the Primacy of all England by virtue of his see, but only by virtue of his prior consecra- tion when he happened to have been consecrated before the existing Archbishop of York. When Thomas a Pecket was succeeded by Richard, Prior of Dover, CHAP. II.] AT WESTMINSTER. 149 Roger the Archbishop of York became the senior Metro- politan, and asserted his claim to the Primacy. Richard strenuously opposed his rival. A council was summoned by the Papal Legate, to meet at Westminster. The usual seat of the Primate was on the legate's right hand, and the Archbishop who could occupy that position would exhibit himself to the assembled ecclesiastics as the head of the English Church, while the Archbishop who failed to secure it would appear to have yielded to his rival. Roger, being the weaker of the two disputants, was the first to appear in the council-chamber, and lost no time in seating himself in the place of honour. Richard, when he entered, refused to take any seat but that which was occupied by Roger. Loud and angry words were followed by blows, and a hand-to-hand fight ensued between the clergy of the two provinces. Numbers in the end prevailed, and Canterbury proved itself superior to York in physical prowess. Roger was ignominiously dragged from the chair which he had appropriated, and was trampled in the dust by his victorious enemies. Pointing to his tattered robes, he asked redress of the Cardinal-Legate, who dissolved the council, and announced that the dispute must be decided at Rome. It does not, however, appear that the Pope expressed any displeasure at this tumult, or that either of the Archbishops lost any of that respect which he had previously won. When the two chief ecclesiastical dignitaries of the realm were not ashamed to engage in a furious brawl, it may well be believed that the inferior clergy were vaiue of not on all occasions respecters of the law. ''^'"^^' Their ambition, combined perhaps with their supersti- tion, led them into some 'remarkable crimes, which it is difficult to narrate with becoming gravity. The miracles ISO RELICS STOLEN BY A MONK. [chap. ii. which were supposed to be wrought by the bodies or by any relics of saints invested the burial places of holy men with extraordinary sanctity. Not only did Henry II. make pilgrimages to the tomb of the murdered and sainted Becket, but Louis VII. of France crossed the Channel to beg the intercession of Saint Thomas of Canterbury in favour of his afflicted son. Fortunate, indeed, was the monastery or the church which possessed any wonder-working remains, and strange the means by which they were obtained. So great was the value set upon them that, like the wealth of this world, they tempted men to be dishonest. In the Abbey of Bodmin rested the bones of Saint Petroc, the virtues of which, it may be supposed, had Stealing of grown famous in the dialects of Britanny and Relics sane- 11 -a/r • <• 1 c n 1 • tioned by a Comwall. Martm, one of the canons of Bodmin, Religious House. -was persuaded to escape from the house, to carry off with him the remains of the Saint, and to bestow them upon an Abbey in Britanny. He succeeded perfectly in his design ; the Breton monks received the treasure with ex- ultation, and without remorse for the theft of which they rendered themselves the accomplices. The Prior of Bod- min, as soon as he discovered the loss which he and his brethren had sustained, presented himself to the king, and related his misfortune. Henrypromised his aid, and directed a letter to the Justice of Britanny, in which authority was given to enforce the restitution of Saint Petroc's body. The justice placed himself at the head of his retainers, and rode to the doors of the Breton abbey. The abbot and monks were at first obstinate in their refusal to give up their ill-gotten prize ; but the justice warned them, with an oath, that unless they delivered it to him without further delay, he would take it by force, as the king had CHAP. II.] THE CLERGY AND THE POOR. 151 bidden him. This argument at last prevailed, and the justice received from them, as he supposed, the remains of the saint. When, however, the Prior of Bodmin received again the object of his monastery's venera- tion and pride, he was seized with a horrible suspicion that his dishonest enemies were still defrauding him, and that they had substituted another and less holy body for the body of Saint Petroc. Nor could he be satisfied that .the remains had been really restored in their integrity until the Breton abbot and monks had confirmed their protestations by an oath taken on the relics of their own house. He must have had a remarkable faith in the power of such things to give honesty and veracity to thieves. The possession of holy relics, however, was but one of the many sources of wealth enjoyed by the religious houses. The monasteries derived immense revenues from lands which supported the dignity and contributed to the pleasure of the Abbot or the Prior. They fur- ^he ciergy nished, perhaps, an entertainment for the king *"^ p°°''- when he travelled through his realm, and their doors were not always closed against more humble wayfarers. But they were not, as might be supposed, so many foun- tain-heads of charity devoting their riches to the relief of the poor. The clergy did, without doubt, distribute alms, but they first received the alms, not in the shape of rents from their own manors, but in the shape of gifts, certainly from the Royal Exchequer, and probably also from private individuals. It is in no sense true that the burden of supporting those who could not support themselves was first thrown on the laity or on the State when the monas- teries were dissolved, Even as early as the time of Henry H. provision out of the royal income was made for IS2 THE STATE AND THE POOR. [chap. ii. the sick in all the chief cities and in many of the smaller towns. Persons who were disabled by blindness or by other permanent infirmity received special grants. The task of distribution was naturally enough entrusted to those members of the clerical body who preferred a life of active charity to the excitement of the court or the useless misery of an anchorite's cell. Many of the religious houses also received, year after year, sums of money for which they alleged some special need. The payments, however, to monasteries, by virtue of the king's writ, are rare in comparison with remissions of payments due from the monasteries to the Crown. It is difficult to conceive, ■ when all these advantages are borne in mind, that the disbursements of abbeys or priories, under the head of public duties, could have exceeded their receipts in one form or other from the king's sheriffs. Almost all the alms either to religious houses or to the sick became es- tablished as annual payments and were deducted in each county from the total sum due to the Treasury ; the tem- porary exemptions also were soon established in like manner by a kind of prescription, though they were not officially classed under the same head. In these facts, and in the ancient rule that a share of the tithes was for the poor, are perhaps, to be found the first rudiments of the doctrine that the State should help those who are otherwise helpless — in short, of our modern poor-laws. The poor, indeed, are frequently mentioned in the laws or dooms antecedent to the Conquest ; but bare precepts, without records of the mode of working, though they may be used to build up a theory, give but little aid in the narration of facts. It must of course be remembered, that long before and long after the Conquest those classes of the laity which were nearest to the con- CHAP. II.] CHRISTIAN CHARITY. 153 dition of paupers had, except perhaps in the towns, and among the numerous hordes of brigands, a superior lord, who, with all his brutality, would, for obvious reasons, be reluctant that a dependent should starve. The poor, in the modern sense of the term, could hardly have had any existence, except as poor townsmen or as poor eccle- siastics. Before the Conquest, the man who had no lord was regarded as a thief ; after the Conquest, the same principle is apparent in those regulations by which a stranger was forbidden to remain more than one night in a town and the sheriffs of each county were commanded to register the names of all fugitives from other shires. The burden of relieving the poor must, therefore, have been but light, and was distributed in effect as nearly as possible in the manner in which it is distributed at the present time. It was borne not by the Church, but by • the public — in part by the great land-holders, in part by those other classes which could afford to pay taxes. The king's revenue was the revenue of the State ; and it was therefore practically at the expense of the State that all grants were made, and out of taxes upon the people that all deficiencies were repaired. It is pleasant to dwell for a moment on this one bright spot in the desert of mediaeval cruelties : to see that there was one form in which compassion was not wholly extinct — to know that a cripple, ^"'''' if he did not chance to be also a heretic, was sometimes supported by his more fortunate fellow-countrymen. It is pleasanter still to reflect that this charity — this higher conception of Christianity — prevailed, in the end, over that bigotry which made orthodoxy almost a synonym for ferocity. But any one who banishes from his mind those exhibitions of inhuman hatred which were called forth by 1 54 THE FIRST HERETICS IN ENGLAND, [chap. ii. the very name of a heretic cannot reaHse to himself the condition of society at the end of the twelfth century. At this period numerous sects had arisen, and come into prominence in the south of France. In spite of Appearance persecution at home, they succeeded in makinsf of heretics in . England. numerous converts abroad. One of them, known as that of the Publicans or Paterines, sprang up, or was revived, in Gascony, spread thence through France, Spain, Italy and Germany, and at last appeared in England. The preachers of the new doctrines in England were, it is said, not very numerous, and were Germans by birth. The contemporary writers differ very materially in their accounts of the success attained by these missionaries, but unite in attributing to them the most revolting doctrines and practices. In the nine- teenth century, it is hardly necessary to remark that the tenets held by heretics in the twelfth century are not to be correctly ascertained from the writings of their adver- saries ; and the heretics have not been permitted to address posterity for themselves. It was, however, commonly believed that these Paterines scoffed at the Sacrament of the Lord's Supper, and abjured baptism, matrimony, and the unity of the Catholic Church. It was their custom, as reported, to meet in the evening in order that they might celebrate the rites which they declared to be essentially Christian and strictly in accord- ance with the teaching of the Apostles. The only positive doctrine which was enunciated was that true charity con- sisted in doing or suffering what any Christian brother or sister might desire. After certain hymns had been hummed, rather than sung, the lights were extinguished, and the brothers and sisters indulged their passions as CHAP. II.] BRANDING AND STARVATION. 155 they pleased. So, at least, says Walter Mapes, afterwards Archdeacon of Oxford. The Paterines, however, may be considered to have cleared themselves from the charge of mere reckless de- pravity by their conduct in the time of trial, inhuman They might have preserved their lives and them. found opportunities for the gratification of their lusts had they been without real faith and willing to recant. But, though their converts wavered, the heretics who had come from beyond the sea, adhered stubbornly to their creed. A council of Bishops assembled at Oxford in the year 11 60. The Paterines were bidden to do penance for their opinions and to be reconciled with the Church, but they were deaf both to persuasion and to threats, and they cried out, in the words of the Saviour, ' Blessed are they which are persecuted for righteous- ness' sake, for theirs is the kingdom of heaven.' The Bishops, without further delay, delivered the heretics to the civil arm for punishment. The Paterines displayed as much firmness as the martyrs of earlier times. Their foreheads were seared with a hot iron so that every passer- by might know the men who had committed the crime of thinking for themselves. Their garments were torn off from the waist upwards, and they were whipped publicly through the streets. They raised no cry in their anguish, they invoked no curses upon their tormenters, but they repeated again and again the words of their Master : ' Blessed are ye when men shall revile you, and persecute you, and shall say all manner of evil against you falsely, for My sake.' Every Englishman was forbidden to give them food or shelter, and the brand on their faces marked them out as objects for the exercise of cruelty. An English ecclesiastic, who. lived at the time, has related. iS6 THE BRABAZONS, ROUTIERS, [chap. ii. in a tone of exultation, that it was winter when these un- happy foreigners were driven from the principal seat of English learning into the open country, that the frost was intense, that no honest English heart was moved to com- passion by the harshness of the sentence, and that the enemies of the Church died in the torments of cold and starvation. Cruelty begets cruelty as certainly as animals beget their like. When the Church slew her enemies in a Brigands manner which was not brutal only because brutes described as . , . . , heretics. are more merciful, when ecclesiastics exhorted one another to inflict such punishments upon heretics that no human being might in future become heretical, the heretics themselves began to imitate their oppressors. Forbidden to worship as their consciences taught them, forbidden to enter the houses of orthodox believers, for- bidden even to purchase the necessaries of life, the per- secuted who survived their persecutions were compelled to join communities of outlaws. There were many such bands, each numbering many thousands of persons in various parts of Europe. They served as mercenary soldiers under any prince who could afford to hire them or could promise them booty. They were known as •Routiers or Brabazons, and it was said that some of them at least had been originally formed in Brabant. In their ranks any man was well received who could add to their strength, and any woman who could contribute to their pleasure. They never enquired too curiously into the faith of their associates, and they demanded no virtue except fidelity to their own body. When monasteries were sacked and the inmates murdered or ravished, when towns and even cities were burnt to the ground, ^.nd when it was discovered that there were at least some CHAP. II.] AND HERETICAL BRIGANDS. 157 heretics among the offenders, the Church began to regard the Brabazons as one of the heretical sects. It does not, however, appear that they held' any positive doctrine in common, or any sentiment except hatred of the consti- tuted authority. In their body every class was represented, and every form of discontent was permitted to exist. They received with equal favour heretics of all shades of opinion, ecclesiastics who had incurred the censure of superiors, fugitive monks, robbers, and men who were in peril of death for political offences. Mercenaries, such as were the Brabazons, and the Brabazons themselves were employed in the civil wars between Stephen on the one side, and the source of the prevailing Empress and her son on the other. Henry II. barbarism. as soon as he was firmly established on the throne, sent the Brabazons out of the kingdom, probably at the instigation of the clergy. It does, not, however, appear that any great good was achieved by this attempt to abolish heresy and brigandage at one blow. The evil did not lie in a single sect, or a horde of robbers bearing a single name, or even in paying mercenaries to secure the throne. It was far more deeply seated in the barbarism of the times, and was inherited from those sad days when the Northern plunderers had torn the Roman Empire to pieces. It was not to be eradicated for many another generation, and has had its effect even upon the present age. Not all the legal reforms of Edward I. could, do more than slightly modify it — much less the reforms of Henry II. The position of the Jews, like the position of the heretics, illustrates at once the fanaticism and the law- lessness of the ag-e. The heretics proscribed by Position of ° the Jews in councils could find refuge only among robbers England. less cruel than lawgivers. The Jews, under the king's iSS THE JEWS IIS/ ENGLAND. [chap. ii. protection, were never secure from attacks made by the whole Christian mob of any town in which they might have licence to dwell. Before the reign of John, at least, It must have been the real wish as well as the expressed intention of the kings to keep the Jews harmless. They contributed in no small measure to the royal revenue, and diverted from the royal officers some of the odium which commonly falls upon the tax-gatherer. They be- came an important body in the country soon after the Conquest. A charter, confirmed by John, was said to "have been granted to them by Henry I. The effect was that they might reside in England as free men, might travel from town to town, might claim redress if molested, and might even hold lands in pledge until a loan had been repaid. The benefits conferred by the Norman monarchs were, however, only an indication of services demanded in return. The Jews became, in fact, if not in name, officers of state, bearing a very close resemblance to those Publicans of the Roman Empire whom their forefathers had hated and shunned. In every town in which they settled they sat continually at the receipt of custom. The genius and traditions of their race rendered them, in all commercial knowledge, infinitely superior to the English- men by whom they were surrounded, and they practically farmed from the king a monopoly of the money-market. For the sums which they lent uport the security of land they sometimes gained sixty per cent, per annum, and they were at one time allowed by law to gain forty. The king, who exacted service of some kind from all his subjects, exacted a return for the privilege which he conferred of taking usury from his subjects. The ac- counts of the 'Jewry' thus became of great importance in the Exchequer, and as the nature of the transaction CHAP, n.] CORONATION OF RICHARD I 159 was not perceived in those rude times, the tax upon borrowers went ungrudged to the king. All the hatred of ruined men towards those who have ruined them, and all the jealousy which can be excited by superior skill and wealth were thus combined with a religious frenzy against the Jews, whose avarice certainly was not all their own. When a London merchant hoped that the profits of bargains made in the morning might be increased by burglaries effected in the night, the life of a Jew must have been a life of ceaseless apprehensions and horrors. The trials which he was compelled to endure, not only in England, but elsewhere, excite wonder that his race survived, and invite admiration for the patience and for the tenacity with which it remained true to its faith under a martyrdom lasting for ages. The treatment suffered by the Jews is, perhaps, best illustrated by the events to which the coronation-day of Richard I. gave birth. The whole of that day's g^g^g ^^ j^^ doings were most characteristic of the age. The day 0?^"°" r ,1 T Richard I. ceremony was one of more than ordmary mag- nificence, and all the most distinguished men in the country were present. From the king's chamber to the altar in Westminster Abbey, the way was covered with woollen cloths. In front of the procession, as though to proclaim ' Peace on earth, good will towards men,' marched the inferior clergy, who bore aloft the cross and the candles, sprinkled holy water right and left, and waved censers of burning incense while they sang in full chorus. They were followed in due order by the priors, the abbots, and the bishops, intermixed with whom were four barons holding four golden candlesticks. Next came earls and barons, each entrusted with some of the 160 MASSACRE OF JEWS IN LONDON, [chap. ii. insignia of royalty— the sceptre, the dove, the golden- hilted swords in sheaths of cloth of gold, the robes, and the jewelled crown. Close behind the crown walked Richard himself, with a bishop on either hand, beneath a silken canopy, supported by four barons on four lances. A crowd of nobles and privileged officials brought up the rear. In the Abbey, Richard took the coronation oath, was anointed by the Archbishop of Canterbury, robed, crowned, and enthroned according to custom. All seemed happy in Westminster that Sunday morning, all prepared to make merry. From the palace to the Abbey, and from the Abbey back to the- palace, bright faces and gay colours seemed to betoken nothing but joy. The king and the nobles took their seats in the palace-hall, glad to exchange the restraint of the past solemnity for the freedom of a royal banquet. But in the midst of the feast, high above the loud voices and loud laughter of the rough king and his rough guests, were heard the sounds of strife in the outer court. When the king had re-entered his palace, some of the leading members of the Jewish community, laden with Massacre of costly gifts, attempted to make their way into London. the royal presence. The Jews had been ex- pressly forbidden to show themselves at the coronation, for it had always been considered a profanation for a Jew to enter a Christian church, or to be present at a Christian ceremony. The intruders, for so they seem to have been considered by reason of the prohibition, were instantly known by their features to be Jews, and were expelled with insults and blows. The cry of ' The Jews ' was raised, and that cry sufficed to rouse the whole populace to fury. It was Sunday, and every inhabitant of the city had been free to join the crowd at Westminster, CHAP. II.] AND AT YORK. i6i to gain, perhaps,, a glimpse of the procession, and to indulge himself in every pleasure within his reach. It was Sunday, and all London was making holiday in honour of the new and popular king. It was Sunday, and this was the day on which the Jews had dared to pollute the approaches to the royal court. It was Sunday, the Lord's day, the day on which the Redeemer had risen from the dead, after he had been crucified according to the wish of the Jews. ' The Jews ! ' cried the mob, bent on enjoying the day, and determined to have vengeance at once for all past iniquities, and for this new insult to the Christian faith and the Christian king. Irresistible numbers marched to the Jews' quarter in the city. They killed every Jew who came in their way. They broke into every Jewish house which was not strong enough to resist their blows. They passed all the afternoon of that Sunday, and the whole of the following night, in murder, robbery, and destruction. They set fire to the houses which they had sacked, and the flames spread to the dwellings of the Christians. They laid the richest part of the capital in ruins in showing their loyalty to Church and King. SuCh was the London of the twelfth century. The news of this riot became the signal for attacks upon the Jews in many of the other principal towns. York was the scene of an outrage even more ° At York. horrible than that which had disgraced London. The Jews became alarmed at the menaces of the popu- lace, and fled for refuge to the Castle. The Constable promised them his protection and, for a time at least, kept his word. One day, however, he left the castle, and the Jews suspected that he intended to betray them, in order that he might secure for himself the greatest share of their VOL. I. M 1^2 MASSACRES OF JEWS. [chap. ii. wealth. In the extremity of their fear they closed the gates, and excluded the Constable from the castle in which he had given them shelter. Not only the mob, but the officers whose duty it was to hold the mob in check, were exasperated by this defiance of the king's authority. The castle was besieged, and the Jews had no hope either of succour or of escape. They saw that death was inevitable, and the greater portion of them resolved to disappoint the wrath of their enemies by committing suicide. With their own hands they killed their wives and children, set fire to the castle, and put an end to their own lives. When the Christians of York stormed the walls, they found no defenders, no human beings but a few wretches who had lacked the courage to anticipate their fate, or whose religious scruples had restrained them from follow- ing the example of their comrades. Upon these miserable suppliants for mercy the assailants were not ashamed to wreak their vengeance; and the last of the Jews in the castle was put to death by men who lived around the cathedral of an archbishop, and by men who displayed the Cross as soldiers devoted to the service of Christ. At Lynn there was a riot, in which fire and sword were carried into the Jewish quarter ; and while the At Lynn, houses of Jews were blazing, and the corpses Stamford, and ^ ^ _ - - Lincoln. of J ews Were Strewn about the streets, the wealth which these enemies of Christianity had accumu- lated was carried on board ship. At Stamford, during the great fair, the Jews were compelled to take refuge in the Castle ; and the Crusaders, who had been exhibiting their crosses to the wondering crowd, sacked the deserted houses, carried off their booty, and escaped all punish- ment. At Lincoln, too, there were outrages, of which the chroniclers have not preserved a full account, but which cHAP. II.] THE JEWS AND THE CRUSADERS. 163 the Rolls of the Exchequer show to have been not less violent than those perpetrated in other towns. No adequate retribution overtook the offenders. A few only were hanged in London ; in York thirty-nine, and in Lincoln no less than ninety-four were amerced for parti- cipation in these deeds of bloodshed. The lists of names are not without their interest ; they show clearly that the mobs were not composed solely of common thieves or soldiers eager to practise those vices for which an in- dulgence had been proclaimed, but that the better classes of the population — the traders, the householders, and even the nobles — displayed zeal for the coming Crusade by attacking the Jews. At this time — at the accession of Richard L — all the chivalry of Europe affected to live for the single purpose of wresting the Holy Sepulchre from the xheCmsades Infidel. The whole of Christendom had been romance. excited to a fervour such as had been unknown since the days of the early persecutions. It might, therefore, be supposed that, if the necessity for laws continued to exist in the midst of such religious enthusiasm, the existing laws were, at least, cheerfully obeyed, and that there could but rarely have been occasion for the infliction of punish- ment. As the imagination travels back through the long centuries of the past, it is tempted to raise a picture of the purest innocence animated by a spirit of the most holy self-denial. It sees heroes, absolutely without fear and without reproach, battling for no earthly honour, but fighting their way to the kingdom of heaven at the gates of Jerusalem. It hears the prayers of the sick, of the women, and of the little children for the success of the Christian ,arms. It has no eyes for the foulness of mediseval iniquity. The external aspect of a Crusade is M 2 104 MORALS OF THE CRUSADERS [chap. ii. not unlike a painting of some rich tropical scene, in which the artist bids us remember only the luxuriance of vege- tation, the brightness of the sky, and the plumage of the birds — in which he makes us forget that disease is inhaled with every breath, and that corpses lie rotting in the jungle. Romance has made the Crusades her own, has - exhibited to all the world the beauties which she has dis- covered in them, and has hidden away, where she could, the horrors of the age. To the strength of the first two Crusades, the British Islands contributed little ; but nothing, perhaps, better Historically illustrates the moral condition of Northern the moral Europe during the eleventh and twelfth cen- condition of , _ Europe. turies than the history of those expeditions. The forces which had received a plenary indulgence for all crimes, and which had been excited to more than ordinary ferocity by the language of preachers, commonly displayed the cruelty without the discipline of brigands. If they had devoted themselves to the service of God, they convinced the inhabitants of the towns on their line of march that they had ceased to respect the laws of man. They considered themselves privileged to gratify every wish and every lust as it arose. They recognised no rights of property, they felt no gratitude for hospitality, and they possessed no sense of honour. They violated the wives and daughters of their hosts when they were kindly treated, they devastated the lands of friends whom they had converted into enemies, they resorted to wanton robbery and destruction in revenge for calamities which they had brought upon themselves. They believed that they proved their superiority to Mahommedans by slaughtering the defenceless Jews ; and this was the only exploit in which the first divisions of the Crusaders could CHAP. II.] IN THE FIRST TWO CRUSADES. 165 boast of success. The bodies led by Walter Sans- Avoir, by Peter the Hermit, and by Gottschalk, suffered defeats almost as disgraceful as their previous conduct. After three years, however, of toil and suffering, and after a loss of lives which the chroniclers estimate by hundreds of thousands, the object of the first Crusade was attained, and the Christians were in possession of the Holy Sepulchre. Soldiers displaying conspicuously the Cross of the Prince of Peace burst in all the pride of war through the gates which He had entered meekly riding upon an ass. Where He had taught love, and pity, and tenderness, where they believed that He had healed the sick and raised the dead, they gave vent to all the passions of savages, they refused all quarter to their enemies, they caused torrents of blood to flow through the streets. On the very spot where Joseph and Mary had found Him instructing the Doctors, and where He had overthrown the tables of the money-changers in the Temple, one of the highest Christian generals eagerly seized, as his spoil, the treasures which had been stored in the Mosque of Omar. In less than half a century it was discovered that a second Crusade had become necessary, in order to secure the gains of the first ; and in the year 1 147 Treacheries of Conrad HI. of Germany, and Louis VH. of *' ^'^"''''^=- France took the cross. But the sins of the first crusaders were. visited on the soldiers of the second Crusade. The court of Constantinople had not grown more friendly to the western adventurers in the interval between the two expeditions ; it regarded them with well-merited suspicion, and thwarted them by every device which could be brought into play without an open exhibition of hostility. After much loss and many defeats, they made their way ''^'^ THE THIRD CRUSADE. Ichap. n. to Palestine, when the sovereigns consulted together and resolved to attack Damascus. When the siege had been carried on with so much success that the garrison saw no hope of safety, some of the Christian leaders accepted bribes from the enemy, and deserted. The two monarchs, perceiving that their enterprise must be fruitless, left their followers to straggle home as best they might, and made their way with all speed to their own dominions. The kingdom of Jerusalem which had been established as the result of the first Crusade was, perhaps, maintained in existence for a few years by the second. There ended the advantage ; honour there was none. The treachery which had rendered the siege of Damascus fruitless was imitated by a Christian commander in the year 1 187. It was not difficult for the Count of Tripoli to dispose the Christian forces to the advantage of Saladin, when the chiefs of the Christians had more jealousy of each other than zeal for their cause. A great defeat of the Christians at Tiberias was followed by the fall of the Holy City itself. Saladin, with a generosity- which his adversaries might have won credit in imitating, granted the possession of the Sepulchre to his defeated enemies. But neither policy nor passion would permit the court of Rome to acquiesce tamely in such a loss as they had sustained, or to recognise any virtue in an unbeliever. A third Crusade was immediately proclaimed, and this time the frenzy ex- tended itself in full force to England. It was checked, indeed, by the war of Henry II. with Philip of France, and with his own son. But upon the accession of Richard, a prince so virtuous and valorous that, if he could not use his sword elsewhere, he was glad to wield it against his father, the smouldering fire burst into |lame. CHAP. II.] CHARACTER OF RICHARD I. 167 The young Richard seemed in popular estimation to be the incarnation of all that is kingly and chivalrous. He fought, as his contemporaries proudly character of boasted, with the heart of a lion ; and he seems de Lion. to have possessed as much courage, as high a sense of justice, as tender a regard for the helpless, as the noble beast of the forest. The expedition to the Holy Land appealed to the popular imagination ; and all classes were agreed that there could not be a braver commander or one more fit, according to all precedent, to bear the name of Crusader. What mattered it that he had leagued him- self with his brother to undo his father, if he was willing, like a true knight, to league himself with the French king to undo the infidel Soldan ? If he sold bishoprics and offices, it was no more than his predecessors had done before him, and if he had declared that he would sell London itself to raise money, did not the end sanctify the means — did not the expression itself show a generous nature ? To those who are familiar with the characteristics of the age handed down through many centuries of bar- barism, it will not seem strange that the young ^vvs popu- king was popular — that his cheerful mien and '"^^^^ his brawny frame atoned, in the eyes of the populace, for the absence of qualities which they had not learned to miss. His army was an army of Crusaders little if at all less savage than the hordes which Peter the Hermit had brought together nearly a century before ; and these Crusaders were the picked men among the masses of our forefathers, carrying with them the sympathies of their fellow-countrymen. They were Crusaders fit to serve under the Prince of Crusaders — ready, indeed, to risk their lives in fair fight, but not less ready to murder an •i68 CHIVALRY ILLUSTRATED BY Ichap. n. unarmed Jew, or to break any one of the last six com- mandments. The admiration of Richard, which long survived and still survives in song, shows how completely he represented the popular notion of a good king, and how indifferent men were to any qualities except mere physical courage and that gay and careless temperament which often accompanies it. The embarcation of Richard's army, however, was a great event in the history of England. The men who Remote ad- Sailed Were unconsciously helping to destroy J'heCra-°^ the distinction between Normans and English- men, and to weld the two classes into one nation. In accordance with the policy of the Conqueror and his successors. Their enterprise, hopeless in a mili- tary sense, was full of promise to anyone, had such there been, who could have looked beyond the range of mediaeval bigotry and mediaeval aspirations. But the benefits which the Crusades were to confer not only upon England but upon Western Europe were not yet, and could not for many years become, apparent. Regarded apart from the results which could not have been fore- seen, they were the crowning effort of barbarism ani- mated by superstition. The ordinances for the voyage to the Holy Land show, in a few unambiguous sentences, the character of The Age of the soldiers who sailed, and of the knights who illustrated by Commanded them. Whoever killed a man on ces made for board ship was to be tied to the corpse and the Crusa- ..... ders. thrown With It into the sea. Whoever killed a man on shore was to be tied to the corpse and buried alive with it. Drawing blood with a knife was to be punished with the loss of a hand ; a mere blow, with three complete duckings in the sea. A thief was to be CHAP. II. j THE ORDINANCES FOR THE CRUSADERS. 169 shaved, to have boiling pitch poured upon his head, and a cushion of feathers shaken over it, so that his misdeed might be known to all ; and he was to be put ashore at the first place at which the ship touched. Such was the age of chivalry some time after its beginning ; such the rules by which Christian kings attempted to enforce discipline among Christian heroes of romance. To the leaders, who could not write their own names, deception and treachery were as familiar as force ; to their followers raoine and murder were so con- genial that, in the absence of Saracens, Jews, or towns- folk, it seemed but a professional pastime to kill or to rob a comrade in arms. 170 CHAPTER III. FROM THE THIRD CRUSADE TO THE YEAR BEFORE THE BLACK DEATH. THERE is probably no period in history so strongly marked by glaring contrasts as the thirteenth cen- The period tury and the first half of the fourteenth. During markabir' that time many towns rose from a condition very onrass. nearly approaching serfdom to the dignity of sending representatives to Parliament, the laws were greatly improved and developed in every branch, the strength of the kingdom was increased by the conquest of Wales, and the distinction of race between Norman ruler and English subject ceased to exist. But, on the other hand, the ferocity of the barbarians who had over- run the Roman empire had struck root so deeply that it could not yet be eradicated from the masses of the popu- lation, and often overshadowed the more enlightened law-givers. The right of private war lost its legal sanc- tion, and the exaction of revenge by an individual began to be a crime against the state. But, on the other hand, individuals continued to value their own privileges far more than the common weal ; and the lords of every manor, and the seamen of every port, were still reluctant to abandon the appeal to force when they believed the issue would be in their own favour. To one who- studies CHAP. III.] TOWNS AND THE MURDER-FINE. 171 -only the history of the constitution, it will appear that marvellous progress had been made at the end of the reign of Edward I. ; to one who studies only the history of the people, it will appear that but little progress had been made even when Edward III. was in his prime ; to one who studies both, it will become manifest that civili- sation is, like a forest tree, easily cut down by a few strokes of the axe, but slow of growth, and not to be matured by the mere will of kings or legislators. The extinction of Roman civilisation in Britain may be related in a few sentences ; volumes barely suffice to show how England became civilised in later times. The growth of the towns, which was freer and fuller after the disorganisation of feudal society conse- quent on the Black Death, seems to have been ^he Towns previously confined within certain well-marked of th"m2^* limits. London, always held in respect by kings, even before the Conquest, was the model to which the other towns attempted to assimilate themselves. It had received a general confirmation of its ancient privileges from the Conqueror ; but not until the reign of Henry I. did it become, in the legal language of the day, quit of murder. Before this time the towns, like the rural hundreds, or, perhaps, in some cases, as part of the hundreds, must have been compelled to make present- ments of Englishry, and to pay for a Frenchman slain within the walls. It was no small advance towards escape from the reproach of subjection to a foreign yoke when the Englishman was promoted to equality with the Norman in the city of London. But the majority of the towns do not appear to have obtained exemption from the murder-fine earlier than the reign of Richard I. ; nor had they all obtained it at the end of the reign of 172 PRIVILEGES ACQUIRED BY TOWNS, [chap. iir. John. The royal favour had to be purchased for money ; and it was not until the Crusades had caused property to change hands, and had stimulated intercourse with the Continent, that the burghers were able to pay for new privileges, or the kings were willing to grant them. The townsmen, when their opportunity came, seem to have thought first of securing some position which had been lost or imperilled at the time of the Conquest. If they are not exempted from the murder-fine in so many words, they receive a confirmation of their ancient liberties and customs ; of the ancient liberties and customs which they enjoyed in the time of King Edward ; of the privilege of clearing themselves, in the Pleas of the Crown, according to the ancient custom of their city. To the citizens of London is expressly granted the ancient right of com- purgation by the charter of Henry I. ; and the inha- bitants of many other towns regain it indirectly by clauses in later charters, which place them, in criminal matters, on the same footing as the capital. The Londoners maintain that their ancestors hunted on the Chiltern Hills and throughout the counties of They obtain Middlesex and Surrey; the king allows their leges. claim, and, though sport is a pleasure almost exclusively royal, permits them to enjoy it as freely as their forefathers. Similar indulgences are afterwards granted on a smaller scale elsewhere, and probably for similar reasons. Thus Richard L allows the burgesses of Colchester to hunt the fox, the hare, and the cat. The grant of a borough to its inhabitants is sometimes made in the same form as a grant of land to a favoured noble or to a religious house. They are to hold their liberties well and in peace, freely and quietly, wholly, fully, and with honour, in woodland and in clear-land, in roads and in CHAP. iii.J TOWN CORPORATIONS. 173 paths, in meadows and in pastures, in fees and in demesnes, in waters and in mills, in fish-ponds and in fisheries, in moors and in marshes — as well without the walls as within, as far as their free customs extend. It would be of no practical use to enquire, in this place, what was the origin of such claims as those which were successfully asserted by London. In the absence of sufficient historical testimony, a con- clusion, however ingeniously drawn, has to struggle for existence against rival conclusions or rival prejudices, and the matter is left in the end precisely where it was before the discussion began — in doubt. It is impossible to give at once a clear and a trustworthy description of the pre- cise political position of any town as existing before the Conquest, and for that reason it is most difficult to estimate at their true value the town-charters of the twelfth and thirteenth centuries. The curt sentences of Domesday are not less prone to excite an appetite for the information which they withhold than gratitude for the information which they impart. They tell us that a brewer of bad ale in Chester was exposed, whether male or female, on the seat of filth ; but they do not tell us that there was a guild merchant at Lincoln. Possibly there was not ; but the charter granted to the citizens of Lincoln by Henry II. allows them their guild merchant, as enjoyed by them in the time of his predecessors, including Edward the Confessor. There is not complete uniformity in the returns from the various counties entered in Domesday ; and, as. according to the book itself there were guilds of burgesses at Canterbury and Dover before the Conquest, it is by no means impossible that the claim of Lincoln may be founded on fact. When King John gives a charter to Gloucester, the guild mer- 174 POWER ACQUIRED BY LONDON, [chap. iii. chant is mentioned as already existing, and the burgesses who belong to it are exempted from certain imposts. In many other charters, including one granted as early as the reign of Henry I. to Beverley, the guild and the guildhall or hanse-house are introduced in such a manner that they seem rather to gain a new legal recognition than to be newly established. In none of those granted to English towns are the words identical with the words employed towards the burghers of Niort, who obtain a licence not simply to have a guild or commune, but to establish one which they may afterwards enjoy. In the reign of Henry I. the citizens of London obtained, or regained, the privilege of electing their own They recover sheriffs, and toolc the county of Middlesex to facts of the farm. In other words, the elective sheriffs of sooner than Londou Were theuceforward sheriffs also of the rural dis- tricts. Middlesex, and paid a fixed annual sum into the Exchequer in satisfaction of all ordinary payments due from the county. The position of the city after this con- cession was not only stronger than that of any town, but stronger also than that of any shire in the country, for there is no doubt that after the Conquest the sheriffs were usually nominated by the king. Before the end of John's reign the principal towns had so far followed the example set them by London, that they could choose their own chief magistrate, subject only to the king's approval, and were independent of the jurisdiction claimed by the sheriffs of the counties in which they stood. Individual townsmen could now hold their lands in burga.ge — a tenure as free as socage, which was the freest lay tenure known in the shires. The villein who could escape the observation of his lord, and remain in a chartered town for a year and a day immolested, could be a member of CHAP. III.] THE TOWNSMEN AND THEIR AIMS. 175 the guild, commune, or corporation, and become a free man ever afterwards. It is not, indeed, probable that until the Black Death had taught the labourer his value, freedom was often acquired, in this manner, by the bonds- man fleeing from his lord. It may be, too, that the towns collectively gained by the third Crusade nothing which some towns, at least, had not enjoyed before the Con- quest; but' it is quite certain that if they had not yet raised themselves to a level absolutely higher than any attained under the West Saxon dynasty, they had been the first to recover from the effects of the disaster near Hastings. Their fellow-countrymen in the rural districts were contemptuously regarded as mere Englishry long after the burgesses were known simply as burgesses. The relative positions of classes thus underwent a change, at the time almost imperceptible, but in the end of no little importance to English civilisation. The advantages secured by the towns were, however, not free from certain adverse influences, springing in part from the very sources of benefit. If the towns- They are in man became more wealthy through the increase verting to the old forms of of commerce, if he learned from the Crusaders barbarism. how the towns of Italy could dictate terms, instead of accepting them from feudal chiefs, and was animated by a spirit of emulation, the traditions of the past were con- tinually directing his energies into the groove which led back towards the old forms of barbarism. If he freed himself from the duel, he reverted to compurgation ; if he excluded the Sheriffs and Hundred-men he also excluded the King's Justices ; if he strengthened his town-organisa- tion he retarded the unification of the kingdom. Even if he took the Italian cities for his models, he would always have in his mind the fact that each of them fought 176 REPRESENTATION OF [chap. iir. under its own leaders for its own benefit, and preferred its own right of making war to such an abstract idea as that of national unity. It is necessary to bear well in mind this continual conflict of causes, this atavism of the barbarous wherever They begin to barbarism has once been introduced among any tedTSrie- population. The excessively slow growth of gisiativebody. civilisation in England at a time when legislation was specially favourable to its progress, cannot otherwise be easily understood. Before the end of the thirteenth century, the principle of representation in a national par- liament had been accepted by the land-holders, by the clergy, and by the townsmen. This was a most impor- tant step towards that consolidation which had always been the aim of the Norman or French sovereigns, though it had been made in the manner least agreeable to their ideas of government. It would be foreign to the purposes of this history to describe at length the conflicting efforts of the different estates of the realm. They have left their marks in Magna Carta and its many confirmations, and in the Statutes passed after Simon de Montfort had set the great precedent of summoning a truly national assem- bly. But there are some points in the great constitutional struggle which cannot be dismissed without notice. Before the Conquest the king was assisted by a council, styled, when it assembled, the Meeting of the Wise, at which the bishops and chief land-holders held seats. Im- mediately after the Conquest there was a council of a very similar character, of which the members were also lay and ecclesiastical. It cannot be stated with certainty on what occasions the king summoned his council either before or immediately after the Conquest, because the writs of summons are not in existence. For similar reasons it is impossible to decide whether the council CHAP. III.] TOWNS IN PARLIAMENT. 1^7 filled vacancies in its own body, or the king had unlimited power to select new councillors as he pleased. Nor indeed is it necessary to suppose that there was any abstract theory of constitutional government, or even any consist- ency of practice at a time when king and nobles were alike ready for an appeal to arms on the slightest provo- cation. Of representatives freely elected by the people, or a considerable portion of it, there was no trace. As soon, however, as the towns began to have a recognised corporate existence they began also to send representa- tives, elected by the members of their corporation, to Westminster. In the charters in which their various liberties and immunities are secured there is commonly a provision that their common council shall elect two of their more lawful and discreet men and present them to the Chief Justice at the Treasury with a statement of accounts. This is a most important advance towards parliamentary representation and towards the constitutional doctrine that the right of granting supplies belongs to the Com- mons. The two burgesses, at this early stage, have, it is true, no discretionary power given them by their electors ; they do not meet the burgesses of other towns, nor any knights from the shires ; they are simply entrusted with the care of certain documents which they are prepared to explain and to justify on tbe part of their fellow-towns- men. But on the other hand they are the means of communication between the king (or his representative, the chief justice) and their constituents in all matters of finance ; they become familiar examples of the represen- tative principle in combination with free election ; they suggest an expedient for future use ; and in the struggle which calls forth a national assembly they are naturally transformed into members of parliament. VOL, I. N 178 FIRST EFFECTS OF TOWN-INFLUENCE, [chap. hi. A combination of three antagonistic principles was effected in that stage of national growth in which a Fusion of national parliament became an established insti- opposing , ;. .^ . , 11- -1 e principles, tution. Unification, the great leading idea ot the Conqueror and his house, was realised in a central legislative body; local independence, dear alike to the shires and to the towns, found its expression in local representation ; representation, the enemy alike of local- isation and of despotic rule, took both by the hand and reconciled them to each other by means of a compromise. The townsmen, brought into contact with representa- tives from the shires, now began to exert an influence, at first very slight and not in all respects beneficial, upon the First effects Hves and occupations of other Englishmen. of town ta- 1 1 r i fluence. England seems at this time and long afterwards, to have grown, on the average, only sufficient corn for home consumption. Permissions to export corn alternate, in the Records, with prohibitions, apparently according to the abundance of the harvests near the coast. The greater part of the land, where it was cleared, must have been grass land. The chief commerce was the export of wool to Flanders where better and finer cloth could be made than any of native manufacture. A cloth, however, of coarser quality was made in England and even exported to Norway, and there were at least as early as the twelfth century guilds of weavers in London, Oxford, York, Nottingham, Huntingdon, Lincoln, and Winchester. One of the great objects of the townsmen when they acquired a little power, was to prevent the import of foreign manufactures and even the export of ■ English wool, and they sometimes succeeded in obtaining a proclamation favourable, as they supposed, to their interests. The export duties on wool were, however, too CHAP. III.] DISTRIBUTION OF THE POPULATION. 179 fertile a source of revenue to be abandoned ; and a far better plan was carried into execution when a colony of Flemings was introduced into England by Edward III. in order that they might teach his subjects the art of which they enjoyed the sole possession. A most favourable impulse was thus given to an important branch of national industry, but its full effects do not yet become perceptible. Perhaps, a more certain indication that commerce had already begun to exercise an influence over the thoughts and actions of men is to be discovered in certain changes of the law. In the reign of Edward I. land was, by two statutes, made liable for debts contracted in trade — a most convincing proof that the trading classes were beginning to show some power in the House of Commons, and possibly also that the land-holders were beginning to en- gage in commerce. The proportion of the trading or town population to that of the country will, however, probably afford a better gauge of the strength of commercial interests proportion of than any isolated facts to be gleaned from the tYoTto mrai' Statute Book. Thus much it is possible to p°p"^"°°- ascertain with some approach to accuracy, even though it may be impossible to discover what was the total popu- lation of England. Fortunately there exists a roll on which appears the number of men demanded by Edward 1 1. (when he intended to make an expedition to Gascony) from every county except the palatinates, and from almost every town except the Cinque Ports. There can be no doubt that the force required from each place bore a certain ratio to the total of males between the ages of sixteen and sixty, who were at this time all liable to military service, and whom it was the duty of the Com- missioners of Array to muster and inspect. N 2 i8o TOWN AND COUNTRY. [chap. in. The first demand upon the shires (afterwards con- siderably reduced) was for 410 'hommes d'armes,' 1,020 hoblers, 2,190 archers, and 19,220 ordinary foot soldiers — making a total of 22,840. The first demand upon the towns (afterwards reduced in only three instances) was for 1,950 men, who were all to be ordinary foot soldiers. The towns were therefore held capable of supplying less than a twelfth part of the whole national army ; or, in other words, it was supposed that the males between the ages of sixteen and sixty were distributed, in country and town, in about the proportion of eleven to one. Nor was this a mere supposition, for the views of frank-pledge, and the rolls relating to the Assise of Arms, must have given our forefathers a very clear insight into the popu- ation of every district ; and the levies were, no doubt, made in accordance with well-ascertained facts. The proportion of women and children to adult males may of course be assumed as identical in all parts of the country, and it therefore seems reasonable to believe that the town population has been fairly estimated, and been set in its true place, in the whole population of the kingdom. When the result is compared with the figures given in the census of 181 1, it is possible to arrive at some idea of the great social revolution through which the country had passed in the interval. At the beginning of the nineteenth century, only 32 per cent, of the whole popu- lation were engaged in agricultural pursuits ; the 32 per cent, had diminished to 25 per cent, in 1841 ; and the time seems now to be approaching when the rural districts will contain as small a fraction of the whole English population as the towns contained in the reign of Edward II. In the roll from which these details have been gathered CHAP. III.] THE TOWNS UNDER EDWARD 11. i8i may be discovered also some other facts which show a little more minutely the distribution of the Relative mag- ,. ....... . . , nitude of the population, and aid in denning the true position towns. of the towns. London was credited with three times as many inhabitants as any other city or town in the realm. Next in rank, and all equal, were the towns near the chief seats of the worsted manufacture and woollen trade — Norwich, Lynn, and Great Yarmouth. York and Bristol were the only two others which were each expected to send a hundred men — as many as each of the three chief towns of the eastern counties. Lincoln stood next, and was asked for eighty men. Then came Winchester, Exeter, Shrewsbury, Hereford, and Oxford, which were each to send sixty. Canterbury, Ipswich, Northampton, Salisbury, Southampton, Bury St. Edmunds, and Bever- ley were each set down for fifty. Kingston-on-Hull was at first asked for forty, but the number was, as in the cases of Beverley and York, afterwards reduced. The demand upon Coventry was for thirty ; upon Notting- ham, Wells, Gloucester, Worcester, Chichester, and Bos- ton, for twenty men each ; upon Derby and Bath, for six- teen each ; upon Rochester, Warwick, Stafford, Grantham, Stamford, and Huntingdon, for fifteen each. Maidstone, Southwark, Cirencester, Newark, and Ely, were required to muster no more than ten each ; Somerton and Bedford, no more than six each. Barton-on-the-Humber, Grimsby, Scarborough, and Ravensrode are entered on the roll, but the scribe omitted to place the number of men opposite their names. The other towns which may have been in existence outside the counties palatine, and exclusive of the Cinque Ports, were apparently of too little importance to receive a separate summons, and their men were included in the general force of the counties. i82 POPULATION ON THE COAST [chap. hi. The most populous county was Lincolnshire, which was required to send twelve hundred men of all arms ; First effects Kent and Norfolk hardly fell behind it. York- Spon die^'^''^ shire, in spite of its great area, held only the onhl'popu- fourth rank, and was set down for a thousand and eighty men. Elsewhere there was nothing specially worthy of remark except that the counties on the sea-coast were considerably more populous than those inland. This fact is, however, of importance, as showing the first effects of commerce upon the distribution of the population. The defective condition of the roads forbade inland traffic of any magnitude ; there was no consider- able inland manufacture, and the district nearest to the sea was therefore of necessity the first to feel the bene- ficial effects of trade. Goods could be carried a few miles to the nearest port, but, as will hereafter be seen, it would have been impossible to convey them in any great quan- tity any great distance. No one would have attempted even to find a market for corn a hundred miles from home ; and the inhabitants of one county might be in the enjoyment of plenty, while the inhabitants of another were starving. It was, no doubt, the difficulty of internal com- munication which caused the chief seat of trade to be in the eastern counties, whence it was easy to sail for Flanders with wool and wool-fells, or to Norway with worsteds. The branches of agricultural industry which were connected with the production of these exports naturally flourished in the immediate neighbourhood ; and thus it came to pass that if the sea-board generally was the most populous part of England, the eastern counties were the most populous parts of the sea-board. London was the only city which was more populous than its surrounding county; and from the fact that CHAP. Ill,] LESS SCANTY THAN INLAND. 183 its inhabitants numbered more than those of Middlesex may, perhaps, be inferred the general scantiness of the population throughout England. The London scantiness of of those days was not the London of ours, but *on''aTa'''" the ' City,' and nothing more. The proclama- '"^°'^" tions against building in the suburbs, for which the reigns of the Tudors are remarkable, were yet to remain for many generations unnecessary. It is, therefore, most significant that the comparatively small area on which old London stood sent three hundred men to battle, when Middlesex sent only two hundred and forty. The only possible inference is that the rural houses and hamlets were few and thinly scattered, even in the district from which the capital was supplied with the necessaries of life. In the important document from which these details have been gathered, the antagonism of burgher and baron is reflected from the description of the forces. Harrow From the shires are summoned men of all arms ^"ng'^J'hf — cavalry, archers, and ordinary foot-soldiers ; InTothCT from the towns only foot-soldiers, who con- '^^^^^^• stituted, indeed, the bulk of the army, but who were held in the lowest estimation. In every elass there was a struggle for privilege. The old spirit of partisanship survived in all its narrowness. The feudal aristocracy, already perhaps jealous of the progress made by the townsmen in freedom and wealth, attempted, though not always so successfully as in the present instance, to retain in their own hands all the higher military duties. The townsmen, striving to free themselves from the extortions and the insolence of aristocratic sheriffs and justices, were no less anxious to assert their rights in opposition to the townsmen of a rival borough than against the knights who i84 PREVALENT NARRO W-MINDEDNESS. [chap. hi. affected to despise them. Sympathy extended as yet no farther than the guild commercial or the guild social. Inherited barbarism prompted every man to regard his neighbours as enemies ; to take from others what others could not keep ; to exclude others from advantages which he had secured for himself or his guild. In such an age it was inevitable that all who engaged in commerce should attempt to secure monopolies in the pettiest form — that they should attempt to expel others from fields of com- mercial enterprise, in the same manner as their knightly neighbours expelled weaker knights from coveted lands. Thus the citizens of London, being more powerful than other citizens, obtained commercial privileges throughout England, which were reserved when charters were granted to other towns. Thus townsmen of other boroughs showed at least as much anxiety to exclude rivals from the rights which they acquired as to acquire those rights for themselves. Thus were introduced such clauses as that which appears in the charter to Hereford, after the guild-merchant had been legally recognised : — ' We have granted that no one who is not of that guild shall buy or sell in the city or its suburbs without the consent of the citizens.' This narrowness of spirit, which, in spite of many improvements in legislation, was common to all classes, This was "^^^ sometimes rendered doubly injurious by an thelreltment alliance of One class with another for the purpose of the Jews, of destroying a third. If it could be said with strict precision of language that a nation can commit a crime, it would be true that one of the greatest national crimes ever committed, was committed in England when the Jews were expelled through the combined influence of the clergy, the traders, and the barons. But that is not CHAP. III. J ENVY EXCITED BY THE JEWS. 185 a crime which is in accordance with law, and it was by law that the Jews were compelled to leave the country. This most remarkable episode in English history is specially worthy of note in a History of Crime both because it is in itself an illustration of the bigotry, jealousy, and con- tracted partisanship through which barbarism has to pass in its progress towards civilisation, and because there is good reason to suspect that it has a very close connection with one of the most audacious robberies ever perpetrated. The principles of commerce, nowhere very well under- stood in the thirteenth century, were best understood by the Italians and the Jews. In all the chief Envy excited , , , T . , by them: their towns of hngland there was a Jewish quarter, superior only too often the object of such attacks as commerce, those which followed the coronation of Richard I. The inhabitants were allowed to possess a certain organisation which was in later reigns designated, like that of a chartered town, a commune. It will be readily under- stood by all who realise to themselves the character of the age that these aliens were regarded with the most bitter hatred by the traders who were less successful in trade, by the land-holders whose patrimony was consumed in satisfying the demands of the usurers, and by the clergy, who, like the land-holders, fell into debt, and who were as implacable in their faith-feud as their ancestors had been in the blood-feud. Envy was added to other causes of animosity, and the Jews who had grown rich were commonly supposed to have gained their riches by every kind of crime which can be applied to the acquisition of property. It was, therefore, no doubt, partly in accordance with popular feeling, though principally, as before explained, to secure a very important branch of revenue, that cer- i86 FRAUDS ATTRIBUTED TO JEWS. [chap. hi. tain clauses were introduced into the regulations for the Jewry promulgated soon after the return of Richard I, They have fi'om the Holy Land. Every Jew was to make attributedto^ oath that he would cause all his debts, se- curities and possessions of every kind to be re- gistered, and that he would not only be guilty of no concealment himself, but would give information to the Justices of any concealment attempted by others, of all forgeries, and of all clippings of the coin. In these last provisions were embodied the popular belief concerning the practices of the Jews — a belief, indeed, not wholly unfounded, but at least equally true when applied to other classes. During the first nine years of John's reign the Jews lived in prosperity. But, when the necessities of the weak and treacherous king increased, the smallest loss of revenue became a danger to his throne, and he discovered or suspected that the Jews were in the habit of concealing their wealth and sending a false account to the Excheqiier. This offence, it must be remembered, legally subjected them to the loss of. all non-registered possessions and must have been in the king's eyes an unpardonable vio- lation of the agreement according to which their rights of person and property were secured. There is a famous story of a Jew of Bristol which proves that John's suspicion^ were not altogether un- The story of fouuded. This man, had been guilty, perhaps, Bristol ° of some other offences, but certainly of attempt- ing to defraud the king. He was required to pay ten thousand marks and the result shows that his accusers were well informed of his hidden treasures. The money- lender protested that he did not possess in the whole world so much as was demanded of him, that he was an CHAP. Ill,] THE JEW OF BRISTOL AND HIS TEETH. 187 honest man, and much poorer than he was supposed to be. He was sternly bidden to make his choice — either to obey the king's command or to lose a tooth every day until his jaws were toothless. He still refused, he still denied his riches, he still asserted the truthfulness of his accounts. The king's officers began to execute their threat, and one of the Jew's teeth was drawn. His fortitude was not less remarkable than his wealth. He still maintained that he was innocent and poor ; he still argued that he could not give what he did not possess. A second tooth was drawn, and still his resolution was unshaken. He submitted for seven successive days to the cruel torture, and then his courage gave way. He confessed his dishonesty and paid the money. Though it is difficult to repress a feeling of pity for the Jew, whose money was extorted from him in a most lawless fashion, who preferred the loss of seven teeth to the loss of his wealth and the loss of his wealth to the loss of an eighth tooth, it would be unjust to regard him merely as the helpless victim of a tyrannical king. He lived in a law- less age, in which little was thought of any mutilation, and he had grown rich by a succession of dishonest prac- tices. His sufferings would have been averted had he rendered a true account of his wealth. The documents kept in the Common Chest of the Jews would have been accepted as sufficient evidence of his possessions, and a reluctance to pay on his part would have been met simply by a seizure of his goods and chattels on the part of the king. After this time the kings were less able and, perhaps, less willing to protect the Jewry against its Hostility of /-T-i IT- .the Clergy to enemies. 1 he royaJ authority was growing the jews. weaker — especially in all matters connected with the 1 88 FEELING, OF CLERG Y AGAINST JE WS. [chap. hi. revenue. The privileges of the Jews were somewhat curtailed by Magna Carta. The influence of the Church began to make itself felt in opposition to the enemies of its faith. The ecclesiastical policy had long been to render the life of a Jew intolerable in every Christian community. During the earlier years of the reign of Henry III. a plan devised at Rome was adopted in England. It had the merits of great simplicity, and some ingenuity, but was hardly inferior in cruelty to the most cruel tortures of the Inquisition. At a time when a Jew was a mark for the blows of every ruffian and every Crusader, an order was obtained under the king's seal that all male Jews should wear a badge. They were forbidden to appear outside their houses, without two strips of white linen or parch- ment fastened conspicuously on the upper garment. Stephen Langton, then Archbishop of Canterbury, would gladly have distinguished the Jewesses in the same man- ner as the Jews, and have caused the fingers of all good Christians to point at them in scorn, A decree to that effect was passed at a synod held at Oxford, but was not enferced by royal authority till a later period. About seventy years before the expulsion of the Jews from England the animosity of the clergy against The Clergy them begins to be most conspicuous, and desired their ^ . • i v^- ^ expulsion. another cause for it appears m addition to re- ligious fanaticism. In the third year of Henry's reign, Pandulf, the Pope's Legate, was Bishop Elect of Norwich and placed himself at once in the van of persecution. The moment was most opportune for the execution of every clerical design. The king was but a child. Peter des Roches, Bishop of Winchester, and Hubert de Burg were joint guardians of the realm. Pandulf wrote a letter to them in which he declared that he could no longer CHAP. III.] THE dLERGY list DEBT TO THE JEWS. 189 bear with patience the continual clamourings of the Christians against the wicked ways of the Jews. This perfidious people, he said, was always extorting immoderate and oppressive usury from Christians in direct opposition to the decree of the Lateran Council. The victims were so exhausted that they could hardly breathe. His indigna- tion was specially excited by the misfortunes of his dear sons the Abbot and Monks of Westminster. A Jew, named Isaac of Norwich, vexed them unceasingly with suits to be pleaded before the justices of the Jews. Pandulf therefore, requested, or rather commanded the Bishop of Winchester and Hubert de Burg to give in- structions to the justices of the Jews for the postpone- ment of the hearing of a cause, in which the abbot was defendant, until the legate could himself be present. It would then, he added, be time to consider, how an end could be made of these evil practices, and how the great stumbling block could be cast out of the kingdom. This is the first indication of any design to expel the Jews ; and it is worthy of remark that, although Pandulf begins his epistle by expressions of deep com- The clergy miseration for all believers who may be suffer- to them. ing from Jewish extortion, he ends it by asking a special indulgence for his own friends. The abbot and monks of Westminster were in debt ; the scandal of their case and others like it suggested to the legate not that the debt should be paid and that the debtors should be more prudent in future, but that the debt should remain unpaid and that the creditors should be exiled beyond the seas. The Abbey of Westminster, however, was in no worse case than many other religious houses which had mort- gaged their lands to the Jews. Tithes, too, which were originally destined for the benefit of the poor, the repair 19° JEWS CARICATURED ON A [chap. iii. of the church and the support of the minister, became the security of the Jewish capitalists ; and in the smallest of the English counties there were at least three parsons at one time who had given bonds to the money-lenders — the parson of Luffenham, the parson of Whissendine, and the parson of Morcott. Isaac of Norwich, who roused the wrath of the legate by demanding his interest from the Abbot of West- Acontempo- minster, was one of the wealthiest and most rary carica- ture of them, powerful of the Jews, and therefore excited the jealousy of all classes in the highest degree. He was not only a money-lender, but a merchant. He possessed a quay at Norwich, at which his vessels could lade or unlade their freights. Whole districts were mortgaged or otherwise pledged to him at once. Letters were fre- quently addressed to him in the king's name. He was probably the richest man among the Jews of Norwich, and, no doubt, infinitely richer than any of his fellow- townsmen who were Christians. He appears as the principal figure in a cartoon, with which a satirical clerk in the Exchequer adorned the head of a roll. The draw- ing, though rude, is full of life and spirit. The scene is laid on the walls of a castle. Isaac stands in the centre of a group, with his head and shoulders above all the surrounding figures. He presents three faces, one in the centre looking to the front, and one on each side in profile. Surmounting the three is a crown, and it is perhaps to be supposed that there is a fourth face con- cealed from the spectator, and that the Jew is a monarch surveying his possessions in every quarter from which the wind can blow. On the right of Isaac stands Mosse Mokke, another Jew of Norwich, and on the left Avegay, a money-lending Jewess. A horned demon. CHAP. III.] ROLL OP THE EXCHEQUER. 191 touches each of these two on the nose — one with the right fore-finger, the other with the left. On the right of Mosse Mokke is a figure holding a pair of scales heaped up on each side with coins. On the left of Avegay is Dagon, the god of the Philistines, who is seated on a turret, and has evidently become the faithful subject of the Jew. Further still to the left are three demons in armour, one of whom holds another pair of scales with more coins. Though six centuries have passed away since the sketch was made, there are many of the allusions which it is impossible to mistake. The castle of which the Jew is master tells of the jealousies which were roused by the acquisitions of the usurers, and shows that popular feeling was already prepared for the decree which subsequently forbade the J ews to hold land. The coins and scales point to the means by which it was commonly supposed that all the Jews grew rich — to the devices of clipping and counterfeiting. As Mosse Mokke was subsequently hanged, it may be reasonably inferred that he was at last found guilty of the crime of which he had long been suspected. All the principal figures may be considered not only as caricatures of real persons, but as types of a class. Isaac represents the greatest men among the Jews who, in wealth at least, were the equals of proud barons ; Mosse Mokke repre- sents the commoner sort of Jews, who were, perhaps, in some instances not content with sixty-five per cent, per annum as the interest for their money. Avegay repre- sents the Jewesses who were usurers, who were so numerous and who so frequently bore the same name, that it is impossible to determine which of them the draughtsman intended to portray. The wealth accumulated by the Jews had long t92 TUB POPES MONEV-CHAlSTGERS. [chap. iti. excited the covetousness and the wonder of every class ; The Jews and ^^^ about the year 1235 the appearance of the money?^^ Caursms, who were permitted to style them- ^^^^^' selves ' the Pope's Money-changers,' produced a ferment throughout England. The spectacle of Chris- tians practising all the Jewish devices, and growing as rich as the Jews themselves, excited the cupidity of all ranks. Every man was eager to have his neighbour in his debt, and to receive sixty pounds per annum for every hundred which he lent. The field, however, seems in the end to have been divided between the Caursins and the Jews — the only two classes which had sufficient knowledge to make their trade per- manently successful. The object with which these Pope's Money-changers were sent into England was no doubt to aid in expelling the Jews — an object never lost from view from the time when it was first set forth in Pandulf 's letter. An attempt had already been made to deprive the Jews of food, by an injunction of the Archbishop of Canterbury that no Christian should supply their wants — though this had been superseded by the king's writs. According to the spirit of the age, the possession of a privilege by any class naturally excited a desire in another class not to participate in it, but to seize it. That which had been granted to the Jews the clergy, therefore, naturally enough wished to appropriate for the Caursins. The Jews were, however, for some time successful in preserving their wealth. They had the means of doing The Jews that which was now and long afterwards done bribe 'he , . , Justices. by all who wished to retain property or in- crease it. They could at least bribe the Christian Jus- tices of the Jews, as those officers were entitled who had CHAP. ]ii.] THE JEWS BRIBE THE JUSTICES. 193 to decide causes between Jews and Christians, and to enquire what revenue could be extracted from the Jewry. If all property in the hands of the Jews was registered, and if they could not recover by law either the interest or the principal of any debt which could not be proved by reference to the Common Chest, it was manifestly impossible for them to defraud the Government, except by hiding coin or other valuables in their houses. But to put away his talent in a napkin, to let his money lie idle without a hope of increase, would, in the eyes of a Jew, be to dry up the fountain of his riches. His plan, therefore, was bold, simple, and effectual ; he gave the Justices as much as was required to secure their support. Thus it became necessary to issue writs of inquisition into the concealments of the Jewry. Thus Philip Lovel was convicted of receiving presents to further the in- terests of Jews, and Robert de la Hoo of affixing his seal to a forged bond, and both were deprived of the office of Justice. The Pope's money-changers nevertheless grew gra- dually richer, and the Jews gradually poorer. In the civil wars of the reign of Henry III. the Jews Their privi- IcsfGS 3.rG rc- fared even worse than the rest of the popula- stdcted. tion, and were robbed and massacred in riot after riot. The Jewry, in the sense of the revenue to be derived from taxes on the Jews, was mortgaged again and again, until at last it was pledged to their rivals the Caursins. With the I'ight of exacting payment was commonly given the right of distraining ; and there can be no doubt that during some of the later years of the Jews' sojourn in England many of their goods and of their securities, in the shape of bonds, passed into the hands of the Pope's money-changers. In the year 1270 it was ordained that VOL. I. o 194 THE JEWS and the CHURCH. [chap. iii. no Jews should in future possess any freehold in England, except the dwellings which they occupied, or which they let to other Jews in the towns where they had licence to reside. All previous conveyances made to them were to be held null and void, and the lands were to be given back to the Christians who had formerly been in possession, on repayment of the purchase money v^ithout interest. Soon after the accession of Edward I. was enacted the Statute of the Jewry, in which it was recited that many honest men had lost their inheritances through the pay- ment of usury to the Jews, and that many sins had been committed from the same cause. It was therefore ordained, for the honour of God and for the common benefit of the people, that no Jew should in future practise usury, In this it is not difficult to perceive a desire to conciliate the landholders and the townsmen. In another document it is no less easy to detect the influence of the Church. The king was informed that certain Jews were in the habit of blaspheming the Catholic faith, the Crucifix, the Blessed Virgin Mary, and the Sacraments. He considered it his duty to repress such iniquity by virtue of his office as a Catholic prince ; and the Justices appointed to investigate crimes affecting the coinage of the realm were commanded to punish all Jews guilty of insults to the Christian faith by death or mutilation. The letter concluded with a command, long desired by the clergy, that every Jewess should wear a badge on the upper garment in the same manner as the male Jews. We who live in an age in which half-civilised countries Absurd Still afford instances of attacks upon the Jews, against them, and of absurdly false charges made against them, can, while we congratulate ourselves upon our owji CHAP. III.] THE JEWS AND THE COINAGE. 193 progress, estimate at their true value some of the accusations made by our forefathers. The Jews of Lin- coln, it was said, had stolen a Christian child, hidden it away in one of their houses, fattened it on milk, and then crucified it in mockery of the Christian faith. It was reported that a general invitation had been issued to all the Jews of England, who had journeyed from every city in order that they might be present at the ceremony. A jury of course convicted those Jews who were accused, and they were hanged for an offence which it may be considered certain that they did not commit. At Oxford, one Ascension-day, the Chancellor, the Masters, and the scholars were marching in procession through the streets of the city with the cross borne before them. Suddenly, none knew from whence, a man was seen to throw himself upon the bearer of the holy symbol, to seize it in his hand, to hurl it to the ground, and to trample it in the mire. The surprise was so great that he had escaped before an attempt could be made to capture him, and the consternation was increased by the discovery that the cross was broken. Every one said that the author of this outrage must have been a Jew, and that, if he could not be taken, the community to which he belonged must be made to suffer. The Jews of Oxford were therefore compelled to provide a new cross of silver to replace that which was broken, and to set up a cross of marble as a memorial of the event. Such were the offences against Holy Church of which the Jews were suspected in the time of Edward I. Whether there was any better foundation for the accusation y^^ hundred that they were in the habit of clipping or counter- theirfhanged feiting the coin it is not easy to decide. ' But the '" previous convictions of moneyers employed at the author- o 2 196 EXPULSION OF THE JEWS. [chap. hi. ised mints are at least sufficient to show that the Jews were no worse in this respect than their neighbours. The result, however, of an enquiry into the state of the coinage, in the reign of Edward I., was that two hundred and eighty Jews were hanged in London alone. After this wholesale execution, a great number of persons, who in the records are styled Christians, adopted the profession of informer, and threatened with prosecution those Jews whp had never been convicted or even suspected. The object was simply to extort money ; and as conviction was followed by death, the price of silence was high in proportion. Suspected of every crime, deprived of their synagogues, some of which were converted into Christian churches. Cruel expui- forbidden even to pray after their own fashion Jews from the within the walls of their own houses, the ing om. je-\ys s|-iii lingered a few years in England. But in the year 1289, the clergy, supported no doubt by the popular feeling both of the townsmen and of the landholders, made a final and successful effort to banish the infidels from the country — or, as they expressed it, to separate the goats from the sheep. The Exchequer had ceased to draw a considerable income from the Jewry. The king had less control over the revenue than his predecessors, and had therefore but little interest in opposing the general wish, and he was persuaded to name a day, after which no Jew was to be found in England on pain of death. Cruel as such an edict would be at any time, it was doubly cruel when there was hardly a country in Europe in which the exiles could seek refuge. The Jews had already been expelled from France as they were now expelled from England, and there was no Christian nation which would clothe the naked and feed the hungry when the hungry and the CHAP. iii.J PROFITS TO KING AND CHURCH. 397 naked were Israelites. But the order had gone forth that the Israelites were to depart ; there was to be a new Exodus, in which they could not spoil the Egyptians, but must be despoiled in turn. More than sixteen thousand Jews sailed from Eng- land, in the year 1290, in quest of new homes. So sad a banishment as this has never been narrated by historian or conceived by poet. Men who have been driven into exile for political offences have, in all ages, been consoled with political sympathy abroad. Even the Phocaeans when they abandoned their hearths were not without hopes of a glorious future. The J ews were compelled to embark on frail vessels with their families and with those moveables which they were allowed to retain. They were at the mercy of seamen who bore them no good will, and who thought it rather a good deed than a crime to injure a Jew. Their most difficult task was not, as the Roman had said of other exiles, to ecape from themselves, but to escape from Christians. They were uncertain where they might be permitted to land, and certain only that if they escaped death they were doomed to persecution. Their fate was not very unlike that of the Paterine heretics, whom all true Christians were forbidden to feed, a century earlier, and was hardly less cruel than that of other heretics who were burnt in England a century later. Both the king and the Church profited by the expulsion of the Jews. The king became master of all their houses and all their debts. The latter he appropriated ^s advantage to satisfy his own needs ; the proceeds of the an?th^"^ former he promised that he would devote to '^^^^' pious uses. The Letters Patent by which he granted the houses, the synagogues, and the burial places of the Jews to his Christian subjects are still extant, and show that 198 DEBTS OF WESTMINSTER- ABBEY. [chap. hi. the greater portion of the synagogues and burial-grounds, at least, fell into the hands of the clergy. If the Jews possessed any friend in England who would write a letter to them in their exile, they must have suffered a new pang in learning that their cemetery near Cripplegate, where the bones of their ancestors had reposed nearly two hundred years, had been bestowed, as a mere piece ot waste land, upon the Dean of St. Paul's. Whether the monks of Westminster had, in the seventy years which had elapsed since the time of Pandulf Its bearing and I saac of N orwich, succeeded in freeing them- upon a crime .,,.,, attributed to selvcs from the debts with which they were the Abbot _ _ _ _ • ■ andMoniis burdened, it is now impossible to discover. of Westmm- ■■■ ster. 'pj^g difficulty of paying off money borrowed from usurers at a high rate of interest is proverbial ; and it is, therefore, by no means improbable that there was still embarrassment in the monastery, and that bonds, in which the corporation was held liable, were still out- standing. When the Jewry began to be impoverished, the Pope's money-changers, and, after them, the Lombard merchants or bankers, must, in the ordinary course of business, have become possessed of many securities previously held by the Jews ; and the clergy, who had disliked the Jews as creditors, complained no less bitterly of their creditors the Caursins. These con- siderations may, perhaps, afford some explanation of a crime which was attributed to the Abbot and monks of Westminster, a few years after the banishment of the Jews, and in which some members of the House were almost certainly implicated. Edward I. had not many days left Westminster for a campaign against the Scots. The whole available force of the kingdom was on its march northwards to crush the CHAP, in.] THE ROYAL TREASURY ROBBED. 199 brave Wallace. In the king's absence there was no body- guard at the Palace ; every soldier who could be spared was in active service in the field. On the twenty- ^he Great sixth of April, and succeeding days, great num- t^fRoyaf bers of precious stones, and all kinds of gold- '^'^'^'"'^■ work and silver-work were offered for sale to the gold- smiths of London, and bought by them with a readiness which did them no credit. A rumour soon travelled from mouth to mouth that the Royal Treasury, which was within the Abbey, but close to the Palace at Westminster, had been entered and robbed. Nearly all its contents had been carried off, and some of them had been found in the burial-ground near the Abbey. The loss to the king was afterwards declared to have been no less than a hundred thousand pounds. It is not easy to state the modern equivalent of such a sum ; but materials for an estimate may be found in the fact that the whole revenue of the kingdom amounted to no more than forty thousand pounds about thirty years before the time of the robbery, and that the customs of the chief ports of England were farmed to a company of foreign merchants, about thirty years later, for an annual payment, not exceeding eight thousand pounds. The king was in Scotland when his loss was announced to him, and it was not until the sixth of June, when he was at Linlithgow, that he found an commission • , , • . . • • c -of Enquiry. opportunity to appomt a commission 01 enquiry. The mode of proceeding is a curious illustration of the ancient jury-system, in which there was no dis- tinction between jurors and witnesses. A jury was empanelled for every ward of the city of London, and for every hundred of Middlesex and Surrey — and in addition to these there was a jury of goldsmiths 200 MONKS OF WESTMINSTER [chap. hi. and a jury of aldermen. The separate findings of the juries are the sum of the evidence in the case. On the chief points there was a remarkable agreement in the verdicts ; on others, the jurors of some of the hundreds were silent. It was not disputed that access had been gained to the Treasury from within the walls of the Abbey, that an aperture had been made in the solid masonry for the purpose, and that the person most actively concerned was one Richard Podelicote, who was described as a travelling merchant. Some of the juries found that he had the assistance of masons and carpenters, and most of them, including the aldermen, that he was insti- gated by certain of the monks, who had planned the whole scheme. The Sacristan of the Abbey had, accord- ing to some accounts, offered a portion of the jewels to a girl to induce her to become his mistress. He and the Sub-prior had, according to the aldermen and other jurors, been the principal framers of the design. The Sub-prior, too, had been seen by the Keeper of the Palace in the very act of carrying off some of the spoil. Abbot and monks were alike under grave suspicion when these facts were brought to light. The Sacristan, Indictment Sub-pHor, and others were imprisoned in the ?he Ja^ristan tower. The Abbot, however, was held to bail. and Monks. ^ petition was then sent to the king, in which it was represented that the abbot and monks and other persons accused were innocent, and that they were suffer- ing great injustice in being detained in the Tower. Though the abbot was really in the enjoyment of freedom, the king's sympathy was, perhaps, excited by the picture of an abbot and all his monks confined on a charge of robbery. But whether this was so or not, he lost no time in appointing justipes to hear and determine the case. CHAP. III.] CONVICTED AS ROBBERS. 201 Juries were summoned from the various hundreds and wards, as in the prehminary enquiry, and their recorded verdicts were in all material points identical with those of their predecessors. The correctness of their finding was to a great extent confirmed by the subsequent confession of Podelicote. He did not directly implicate any one except himself, but he admitted that he had been at work upon the wall, through which the Treasury had been entered, night after night, from the seventeenth of pecember to the twenty-fourth of April. On the night of the twenty-fourth he succeeded in making his way through. He spent the whole of the twenty-fifth in the Treasury, and occupied himself during the day in selecting jewels. In the course of the following night the treasure was carried away, It is quite evident that an enterprise which required more than four months for its accomplishment could not have been successful had there been no coUu- conduct of _-,, r 1 • r '^® monks sion within the Abbey-gates. The findmgs of before and . , after convlc- the various juries point to a deep-laid conspiracy tion. between some persons in the Abbey and others in the neighbouring Palace. There was a path from one to the other which was frequented up to a certain hour in the evening, after which the gates were closed and no one could pass. It was remembered, when the robbery had been committed, that these gates had for some time previously been closed at an earlier hour than usual. This could hardly have been done without the consent of persons in authority in both buildings, and the object was obviously to give Podelicote an opportunity of working without fear of interruption. It is not, indeed, clear that the abbot was cognisant of what was done by his monks, or that the keeper of the Palace connived at what was 202 SCANDALS AT WESTMINSTER. [chap. hi. done by his subordinates. It is, however, quite certain that, after all the accomplices had been paid, the booty- would have been sufficient to pay even such a debt as might have been due on a bond transferred from the Jews to other merchants or money-changers. It is also quite certain that charters were commonly forged in religious houses, and that when the fraud was detected the abbot did not commonly suffer. There is, therefore, no ante- cedent improbability in the supposition that this auda- cious crime of the fourteenth century was planned bv those who would not have hesitated to secure land for their House by means of a false deed. So, no doubt, thought the judges, who sentenced some laymen, against whom verdicts were found, to be hanged, and detained the convicted monks in prison more than two years. The monkish writers exclaim loudly against the Iniquity of the Justices, but adduce not a particle of evidence to show that the juries were deceived, and do not even accuse them of taking a false oath. Nor is it even denied by these partial historians that the abbot and monks of Westminster were guardians of the treasure which was stored within their walls. Nevertheless, when the king returned in triumph from Scotland, the Church had suffi- cient Influence to procure the liberation of the monks — partly, no doubt, in celebration of his victories. But this act of clemency seems to have had indirectly the effect of increasing the suspicion against all the inmates of the monastery. An Irreconclleable discord arose between the abbot and his monks ; charges and counter-charges were made ; words were uttered and acts were done which the monkish chronicler describes as too paltry for repetition ; and the king, the nobility, and the members CHAP. III.] LEGISLATION AND LA WLESSNESS. 203 of other religious houses were utterly disgusted at the scandal to religion. It is only in the inner life of the nation — in the life which lies beneath pomp and pageantry and ceremony — that progress can be measured, only by the contrast be- readiness with which laws are obeyed that the provementsin the laws and success of legislation can be fairly appreciated. *e lawiess- During this period, when the towns were be- people, ginning to enjoy their civic organisation according to charter, when the assertion of rival interests was deve- loping, as it were, by a happy chance, the English con- stitution, when commerce was feebly groping its way to the light in the midst of such dark deeds as the oppres- sion and expulsion of its best friends, the Jews, the criminal law was undergoing a change wholly out of pro- portion to any change effected in the manners of the people. The only conclusion to be drawn from this strange contrast is that the general tone of society is at any time a stronger force than the provisions of the most brilliant law-giver, though, of course, as his thoughts are made known to the masses, he may in the end improve the general tone. In proportion as education is more widely -difTfused, the good effects are more easily pro- duced ; but, when barbarism has held its own for cen- turies, a mere improvement in criminal procedure long remains little more than an improvement in writing. How much progress there was in the law, a slight sketch will suffice to show; how little progress there was in refinement may be made apparent by some of the deeds done in the period between the Third Crusade and the Black Death, and still more by a picture of England as it was in the year before that terrible plague. 204 ABOLITION OF ORDEAL. [chap. hi. We have seen what was the trial by ordeal in the dreary age which preceded the Conquest ; we have seen The Ordeal what was the action of the Church in perse- abolished through the cutinpf heretics and Tews ; the beneficent influ- influence of ° ■' the Church, ence of the Church in abolishing the ordeal yet remains to be told. Soon after the establishment of the Norman rule, the ancient practice of conducting the ceremony within the walls of a church was abandoned. The scene of 'God's Judgment' was removed to a trench or pit, and numerous entries on rolls of the reign of Henry II. refer to payments made for the pre- paration of the pits, and the consecration of the appa- ratus. The ordeal by water still continued to be the more common, though in the reign of John a number of persons of ill repute were allowed the alternative of the water or of ' carrying the iron.' The exclusion of the hot water and the hot iron from churches was, however, but the prelude to their exclusion from the office of detecting guilt by order of the Church. By a decree of the Lateran Council in the year 1215 the ordeal was forbidden, and in the year 12 19 it was for- mally abolished in England ; and there is no doubt that to the clergy is due the credit of putting an end to this particular form of barbarism. As compurgation in cases of felony was now no longer permitted, except in some privileged towns and in The judicial ecclesiastical jurisdictions, the abolition of the stance. ordeal left the accused without any means of exculpation except the duel. This does not seem to have been repugnant to the ecclesiastical opinion of the time, and the wager of battle was yet to remain an established institution during many long ages. It was in use as a form of trial for civil no less than for criminal CHAP. iii.J TRIAL BY BATTLE INTERRUPTED. 205 matters, and it was applied even to such a purpose as the decision of the right to an advowson. A case, indeed, in which an advowson was in dispute affords a better insight into the nature of the judicial duel than any other which a laborious search has brought to light. Outside the walls of Northampton a plot of ground was marked out for the trial, and was kept by soldiers. The Justices in Eyre sat as they would have sat in a grand assise or in an assise of novel disseisin. The parties to the suit appeared, as was the law in civil cases, not in person, but each by champion. A great crowd sur- rounded the field of battle, or court of law, but the partisans on one side were in far greater number than those on the other. After the signal had been given, the combatants began to struggle, each bound to conquer or die, or to bear for ever afterwards the most disgraceful of all names — recreant. At length both fell at the same moment. The friends of the deforciants, fearing that the issue might be adverse to them, drew their swords, broke through the line of soldiers, and surrounded the two fallen men. Some were mounted, others on foot, and the force at the disposal of the judges was wholly unable to cope with them. They held the ground and kept off both the soldiers and the justices. The cham- pion of the plaintiffs was unable to raise himself, the horses were made to trample upon him, and when he was quite helpless he was proclaimed a recreant. The sheriff" raised the hue and cry, and the judges left the ground, without any attempt to bring the proceedings to a legal termination. A complaint was afterwards laid before the king in council, when it was held that the attack upon the justices and the champion tended to the subversion of the royal dignity, peace, and crown, and that the 2o6 ORIGIN OF THE SECOND [chap. hi. champion should not incur the infamy and the disabili- ties of recreancy, but should enjoy his free law as fully as before the duel. To such a trial alone, subject to such interruptions, could a person accused of felony be brought, after the The Petty abolition of the ordeal ; and even this me- th7piS thod of testing the truth or falsehood of a and, in part, charge could not be applied unless the accu- sation was made by an individual as distin- guished from the ' country' or the jury of the hundred. It was at this time that a form of proceeding which was developed into our modern trial by petty jury crept into the place left vacant by the hot iron and the hot water. The presentment made by the jury of the hundred was no more than the story of a body of accusers, which was commonly denied by the person accused. The judges soon discovered that unless some other means of arriving at the truth could be found, either every indictment would be equivalent to a conviction, or every criminal would escape through the want of some final process by which he might be tried. They therefore enquired of each juror of the twelve who had presented the charge upon what information he believed it. They also asked the accused whether he suspected any juror of malice, and removed those to whom he objected. It often hap- pened that eleven of the jurors had taken the word of the twelfth for the facts, and that the twelfth, when closely pressed, could not assign any reasonable ground for his statements. After this examination, and, when neces- sary, the substitution of unchallenged for challenged jurors, the jury, which might still consist entirely of the men who had preferred the indictment, found a second verdict which decided the fate of the prisoner. This CHAP. III.] OR PETTY jUR Y. 207 was a step made at once towards our modern system of examining and cross-examining witnesses, and towards the creation of a second jury to consider the charge of the first. As soon as this second verdict had become a recognised stage of the criminal proceedings instituted ' by the country,' it naturally suggested an alternative for the duel in prosecutions instituted by individuals. Thus it became the custom to ask the accused in what manner he would be tried, and thus arose the form of answer ' by my country.' The jury in this case, though chosen in precisely the same manner as the jury which made indictments, or as we should now say, the grand jury, yet gave a final verdict upon a particular case in the same manner as the modern petty jury. But when the pre- cedent had once been set, when once a jury had been summoned for the simple purpose of deciding the guilt or innocence of a particular prisoner, it was inevitable that a distinction should sooner or later be drawn between the jury which accused and the jury which tried — that where an indictment was preferred the final decision should sooner or later be by the verdict of a second jury, not by a second verdict of the first. In the reign of Edward I. some progress had been made towards the division, into two classes, of the juries summoned to give verdicts upon criminal affairs. Nothing could better illustrate the practice of the time than the proceedings which followed the great robbery at the Treasury. The juries of the various hundreds and wards, summoned in obedience to a special com- mission, found that certain persons were implicated in the crime. After the indictment, five justices, of whom only two had been engaged in the preliminary investiga- tion, were directed to try the prisoners. Juries were 2o8 ^ JURORS AND WITNESSES. [chap. hi. summoned from the same hundreds and wards as before, but in obedience to a different commission. There was only one reason why the individual -jurors who sat upon the second occasion should not have been in every instance men who had not sat upon the first. The existence of each of the first set of juries, taken as a whole, had as much come to an end after the committal of the monks to the Tower as the existence of a grand jury- which sat at the Old Bailey ten years ago has come to an end at the present moment. But as the first set of juries were expected to give a verdict according to their own knowledge, so also were the second. In both cases the jurors were witnesses ; and, unless disqualified by their conduct in the first stage of the proceedings, they would be required to repeat their evidence in a final verdict. Thus, though the abolition of ordeal caused in a very short time a formal separation of the trying jury from the accusing jury, the whole system of trial was, so far as criminal affairs were concerned, long afterwards vitiated by the inherent defect which allowed the same person to exercise at once the functions of pi'osecutor, of witness, and of judge. It cannot, indeed, be shown with any certainty that, even in civil causes, witnesses distinct from the jurors were examined in court before the time of Henry VI. ; and centuries afterwards the jurors were, in theory at least, supposed to have been summoned because their testimony was of value upon matters of fact. In the next chapter it will be shown that when con- victions were obtained, they followed almost always upon Indictments indictments, and hardly ever upon appeals — Part^^weaJ-' which wcre accusations made by individuals. For '"^" this there were many reasons. One was that when jurors had in the first instance given an accusatorj( CHAP, in.] PARTY-SWEARING. 209 verdict, they could not afterwards give a verdict of acquittal without imminent danger of a prosecution for perjury. Another was that the old habit of fellowship in swearing had contributed not a little to the growth of trial by jury. If the reeve and thanes accused a man, before the Conquest, his friends made a party to swear that he was innocent ; if a private person was the accuser, his oath also was supported by those of his friends. Though these ancient institutions had gone through many changes, there was still sufficient resem- blance to the old forms for the old spirit of party- swearing to continue in full vigour. Though the in- dictment was a species of compromise between the accusa- tion by reeve and thanes and the accusation by the oaths of a fixed number of private persons, the obligation to injure as much as possible the adversary of a friend was considered as binding as ever ; and if it would not ensure a conviction, there was no motive which would. On the other hand, compurgation, though no longer a part of the common law of the land, was by no means forgotten. The recollection of it was kept alive by the wager of law which, though now applicable only to minor trespasses, was identical with the ancient mode of escaping punish- ment for great offences. In appeals, in cases in which a charge was made by one person against another, the juror who, it must be remembered, had taken no part in the accusation, could hardly fail to look upon himself in the light of a compurgator. His simple reasoning would be that he must be on one side or other, that he was not on the side of the prosecutor, and that he must there- fore be necessarily on the side of the prisoner. He had probably acted often enough as one of the ' hands ' in the wager of law, and it must have been impossible, in an age VOL. I. p 210 STANDING MUTE. [chap. in. of such dense ignorance, to make him see, in an appeal of rape or murder, that he was not simply one of the ' hands ' whose office it was to swear, without hesitation, that the person appealed was innocent. In the confusion which followed upon the abolition of the ordeal the judges seem to have been thrown into Standing somc perplexity by the refusal of prisoners ■prison forte to submit themsclves to any kind of trial. In the reign of John an accused person who ' went to ' the fire or water, and failed to clear himself, was hanged. Only two years after these tests had ceased to be applied in England, some criminals made the experi- ment of standing mute when brought before the justices, and their fate was precisely what it would previously have been if they had been convicted by the ' Judgment of God.' Early in the reign of Edward I. a number of malefactors were surrounded and attacked by the Sheriff of Yorkshire. Some were killed in the struggle, some were made prisoners, and some were beheaded on the spot, because they would not consent to be tried ' accord- ing to the law and custom of the realm.' This, however, does not appear to have been considered satisfactory, foi^^ a year or two later, a statute was passed to the effect that when notorious felons were accused at the king's suit, and refused to stand to the law, they should be sent to the 'prison forte et dure.' About the reign of Henry IV. the ' prison forte et dure ' was transformed into the ' peine forte et dure,' or torture of the press, which was not indicated in the Statute of Edward I., and did not for many generations form a portion of the judgment pronounced upon mute persons. Before the additional horror was inflicted, to be adjudged to the ' prison forte et dure,' was to be adjudged to penance and perpetual CHAP. III.] FHISON FORTE ET DURE. 211 imprisonment ; but the penance was confinement in a narrow cell and absolute starvation. The gaolers, how- ever, when their prisoners were their friends, found in the credulity of the age a ready aid to their friendship ; and it is possible that some distrust of their fidelity may have suggested the hideous cruelty by which an attempt was afterwards made to draw speech from the silent. A pardon granted by Edward III. shows with sufficient clearness both what was the intention of the law with respect to those who would not plead, and how it was sometimes thwarted. ' The King to all his bailiffs and faithful men to whom these presents shall come. Greeting. Whereas Cecilia, widow of John Rygeway, lately in- dicted concerning the death of her husband, was adjudged to her penance because she held herself mute before our Justices of Gaol delivery at Nottingham ; and whereas she afterwards sustained life without food or drink, in close prison, during forty days, after the manner of a miracle, and contrary to human nature, as we have been informed on trustworthy testimony ; We, moved by piety, to the praise of God, and of the glorious Virgin his mother, from whom, as is believed, this miracle has proceeded, have of our special grace pardoned unto the same Cecilia the execution of the judgment aforesaid, and do desire that she be delivered from prison and be no further impeached of her body.' Though i t - may -b e oaid that - the abolition of ordeal led indirectly, after many generations, to the institution of the torture by press, it seems nevertheless to Effects of the have had collateral effects which more than of mutilation. compensated for this perpetuation of barbarism in a new form. The horrible punishment of mutilation which was characteristic of the centuries immediately p 2 212 MUTILATION AND MAIHEM. [chap. hi. preceding the Conquest and had been adopted- into the laws of the Conqueror, as best fitted to impress the native mind, gradually became extinct. The brutalising effect which it had had upon the whole population can hardly be conceived in the modern age of refinement. In the midst of the general lawlessness every man was, when he had the power, a law unto himself, and inflicted upon his enemy the punishment which the law of the land destined for the evil doer. Maiming, that is to say, depriving a human being of a member, was consequently one of the commonest of offences — for which the law provided a wholly inadequate remedy in the appeal of maihem. The An iiiustra- subjcct Can hardly be better illustrated than by *'°"' an act which has been recorded among the rolls of the Court of King's Bench. One Guy Mortimer was rector of the church of Kingston-on-Hull. He bore some grudge against William Joye, one of his parishioners, whom he instructed another clergyman and some of his followers to attack. When the man was prostrate and helpless, Guy appeared, drew a knife, and with his own hand deliberately cut off the upper lip of his enemy. The suiferer estimated his loss at a hundred pounds — a considerable sum in those times — and instituted a suit. The two chief offenders appeared in court, but main- tained that as they were clerks they were not bound to answer, and persistently refused to answer in the absence of their Ordinary. The court, however, held that this was a case in which no Benefit of Clergy could be claimed — not indeed, because the offence was too heinous, but because it was a mere trespass and no felony. Judgment was accordingly given against the rector and his assist- ant, who were each required to pay a hundred pounds, and were committed to prison until they should have CHAP. III. J MITIGATION OF PUNISHMENTS. 213 satisfied the complainant and the king. The deed which Guy Mortimer had done was simply one of the deeds familiar to the executioner from time immemorial, and familiar in its results to all Englishmen who, if they were not thoroughly accustomed to see lipless criminals, had heard many a time of the sights seen by their fathers. It was, however, one of the most agreeable features of the age that such acts were ceasing to have the sanc- tion of the law, and were reserved for occasions Gradual sub- in which it seemed expedient to execute a more other'punlL- than ordinarily impressive sentence. It was, as ""^ ^' the laws of the Conqueror show, considered more merci- ful to hang than to cut off an important member, and to this extent justice had grown more humane towards thieves. Even in the reign of Edward III. the ancient terrors were brought to bear upon the too prevalent habit of brawling in court. A tailor of London was convicted of this act of contempt, of which he had been guilty in the presence not only of the justices, but of the king himself at Westminster. He was condemned to im- prisonment in the Tower of London for life, and to the loss of Kis right hand. He had, however, the good fortune to be pardoned ; and the rolls of Gaol Delivery of this period show conclusively that the ordinary punishments were hanging, the pillory, and the tumbrel or dung cart. There is so close a connexion between the disuse of mutilation as^punishment and the mitigation of the Forest Laws that the consideration of the one -j-^e Forest naturally suggests the consideration of the ^^^^- other. It will be remembered that, before the Conquest, certain lands were known as folc-land or people's land, which was, perhaps, unenclosed, even during the Roman 214 RELAXATION OF [chap. hi. occupation, and that certain common rights existed on portions even of those lands which were afterwards designated manors. The wood-lands had been regarded by the invading Teutons in nearly the same light in which the American Indians used to regard their hunting- grounds. Tribes, to which cities were an abomination, had advanced but very little beyond that view of life according to which the whole world is a free forest, where the first comer may take whatever he can find, Other notions concerning property were with difficulty fostered in the towns ; princes and kings, though recognised as the heads of their clans, were long before they could impress upon their followers that they ought to enjoy any ex- clusive rights over the haunts of the partridge, the hare, or the deer. Traditions, handed down from the time when land w;as held in common, found their expression in attacks on parks, and chaces, and in the life of the forest brigand many a century after the Conquest. They sur- vive, even now, in the sympathy often enjoyed by poachers, and in the antipathy often shown to the game- laws. But long before the Norman Conquest private individuals had asserted their exclusive rights to hunting over their own woods and fields, and king Canute had issued an impressive warning to trespassers upon the royal forests which were probably a part of the folc-land. Under the Conqueror the folc-land became in name, as it was already in fact, the king's land, over which the forest laws were exercised with a rigour often described as execrable. The truth, however, seems to be that if any change was really effected in this respect under our first three kings of the French line, it was only a part of that vigilant severity which pervaded the administration of other laws and was necessary for the security of foreign CHAP. iii.J THE FOREST LAWS. 215 invaders. The forest courts or moots have both in their names and in their mode of operation the marks of an age -anterior to that of Wilham I. The poHcy of de- vastating whole tracts of country, which afterwards became forest land, was suggested, in part, at least, by military considerations. The doctrine, that hunting was a royal privilege to be enjoyed of right by the king alone, and to be granted to subjects only as a favour, was no more than an expression, in another shape, of the doctrine that the king was the superior lord of all land. It was, at most, only feudalism in a more system- atic form than had been previously known. No new punishment was introduced, and if men lost life or limb for killing or stealing a deer they had long before been horribly mutilated for thefts as petty, and, probably enough, for the very same offence. When, however, mutilation ceased to be a punishment in common use it ceased to add horror to the administra- tion of the forest laws. By the Forest Charter Mitigation of of Henry III. it was provided that for the *«"• future no one should lose life or member for the king's venison. Any one detected in taking it was to pay a heavy fine, or to be imprisoned for a year and a day, and after that time to find sureties for future good behaviour. If none would be responsible for him when his term of imprisonment expired, he was compelled to abjure the realm. The penalty was still out of all proportion to the offence, but it had ceased to be disgracefully brutal ; and the only remnant of sheer cruelty which was left in the forest laws after this time, was the practice of mutilating dogs. The diminished frequency of the more brutal forms of punishment had, no doubt, sooner or later an effect 2i6 EFFECT OF LAWS [chap. iii. upon the national character ; but no greater error can be committed by statesman or historian than is involved in Slow effects *^^ suppositiou that manners, customs, and senti- Sponfhlfton" nients, handed down from generation to gene- of society, j-ation, can be suddenly altered by the promul- gation of a law. The true history of a nation is not so much a history of the laws which have been made for its governance as a history of the motives which have guided the individuals composing it. Laws are nothing unless they are obeyed, and they are worth little unless obeyed in the spirit as well as in the letter. When they are far above the level, of popular feeling they are practically valueless ; when they descend low enough to lift a population by easy stages to higher views they attain their greatest value. The gradual withdrawal of legal sanction from the practice of mutilation was one of those happy reforms which imperceptibly improve the moral tone of a people, and which are not followed by less important results because little is expected from them. The cruelty inherited from ages of barbarism could not be eradicated in a year or a century ; but when the subtle influence of a bad example was removed there was a clearer field for the operation of more favourable causes at a future time. It was long, indeed, before that time came. Burning at one period took the place occu- pied by chopping at another ; but there were not so many stakes for heretics as there had been amputating instruments for thieves ; and human tenderness was not quite so effectually blunted by the occasional execution of Lollards as by the ever-recurring sight of men rendered cripples according to law. The whole history of crime tells how slow was the progress towards a sympathy with human suffering, but it tells also that progress was made, CHAP. III.] UPON THE TONE OF SOCIETY. 217 and bids us not to despair when we find some new en- actment apparently useless, nor to form hasty theories concerning any subjects of our empire, when we fail to effect a miracle by the magic of a statute. We, who have long enjoyed the blessings of a settled government, can only with the greatest difficulty throw ourselves, in imagination, back into a period when a settled government was as little expected by Englishmen as Shakspeare expected, when his Puck bragged of putting a girdle round about the earth in forty minutes, that a girdle would one day convey a message round the earth in forty seconds. In that reciprocal action which makes a cause appear to be sometimes an effect, and an effect at other times a cause, it is not easy to discover at what point a greater willingness to obey laws pro- duces a more settled government, or at what point a more settled government produces a greater ten- dency to obey laws. Men's interests are the prime movers of their actions ; and, as commerce and education enlarge their views, they perceive that their true interests, no matter what their class, are best advanced by well established laws peacefully obeyed. But there was no such enlightenment in the troubled times of the thirteenth and fourteenth centuries ; and it is but too evident that barons then excited commotions in order to become in- dividually their own lawgivers, and that the compromises which they effected with kings became recognised at last as constitutional principles. The Manor Court, which still possesses vitality, is a memorial of a time when a baron possessed a prison, into which he could throw 'hand-having' or 'back-bearing' thieves before he hanged them, when he took advantage of a civil war to seize his neighbour's goods on pretext of distraining by virtue of 2i8 CONSERVATION OF THE PEACE. [chap. hi. his own jurisdiction, and when his chief object in opposing the king's authority was that he might be a Httle king himself. A statute which restricts these privileges by no means implies a state of society in which they are re- stricted ; nor does the abolition of a needlessly cruel punishment render men at once averse to needless cruelty. If consonant with the tone of the age a good statute effects in time a proportionate good ; but it is not now an immediate panacea for all evils, and still less was it such a panacea before the Black Death. The laws, indeed, of that early period which at first sight appear to mark the truest advance were but a bitter mockery of the every-day life of an Englishman. In a writ for the Conservation of the Peace bearing the date 1233, may be seen an attempt to develope and „ . . , enforce the ancient system of police which had Provisions for ■' ^ tion^f'the™' existed before the Conquest. It will be remem- Peace. bered that there was a certain apparent com- pleteness in this system even in the tenth and eleventh centuries. The mutual responsibility of the Peace Pledge seemed to find all that was required to render it effectual in the watch and ward provided for the highways and within the town walls. Its real use, as amended under Henry III., was only that of handing down to posterity a summary of the inconveniences to which our forefathers were subjected by futile attempts to give a little security to their lives and property. Any stranger attempting to pass through any town at night was to be arrested and kept under guard until the next morning ; if he escaped he was to be followed with hue and cry. No one was to entertain a stranger within his house more than one night, except on condition of finding sureties and incur- ring the same responsibility as for a member of his own CHAP. III.] SWEARING TO ARMS. 219 household. All who possessed private jurisdictions were to be answerable to the Justices in Eyre for any neglect of these provisions. The sheriffs and foresters were to use all diligence in attempting to preserve the peace, and, if they heard that malefactors made any wood a place of shelter, they were to summon the whole neighbourhood to aid in effecting a capture. The sheriffs or their bailiffs were to receive into their custody any malefactor taken by a private person, and were not to exact a fee for the performance of this duty. Any one unknown, and found travelling with arms, was to be lodged in gaol until he could produce sureties for his good behaviour ; and in the same manner all found in possession of property of which they could not give a satisfactory account were to be imprisoned for a year and a day, and if they were then unable to produce sureties they were to abjure the realm. Similar provisions are repeated in the year 1253, when the armed watch at every gate of every town is somewhat more minutely described, and when the con- nection between the old system of police and the assise of arms is rendered more apparent. All the males, be- tween the ages of fifteen and sixty, in town and in country, are to be ' sworn to arms '—all, that is to say, are to prove that they possess arms of the kind suited to their condition of life. All are to be ready, when called upon, to take part in the hue and cry, and to aid in the capture of malefactors ; none are to carry their arms except when specially summoned to preserve the peace. In these regulations we see that every man was under the obligation of military service, as in the old days before the Conquest, and that military service implied police duties in time of peace as well as field duties in time of 220 ROBBERS SCREENED BY JURORS, [chap. iii. war. It seems, too, that a merchant or other traveller could claim an escort from the mayor and bailiffs of any city or borough, if he chose to show that he had a con- siderable sum of money in his possession. In the famous statute of Winchester (a.d. 1285) the ancient law with respect to watch and ward, to hue and The Statute cry, and to the assise of arms, was again de- of Winches- , , _, ter. clared. Some further provisions, however, were added. A space of two hundred feet was to be cleared of all bushes on either side of every highway, and there were to be no dykes within the same distance, in which malefactors could lurk. The whole hundred, with the franchises which might be included in it, was to be an- swerable for every robbery committed within its limits, as it was already answerable for the murder of all persons who were not English. The meaning of this was that the hundred must either produce the offenders and indict them, or pay a fine. The reason for making the neigh- bourhood responsible was plainly enough expressed in the statute, and will not excite any surprise in those who have followed the course of our criminal law from the days of the peace-guild and of compurgation. Felons, according to the preamble, could not be convicted by the oath of jurors, who would rather that strangers should be robbed with impunity than that their own neighbours should be indicted either as robbers or as receivers. Per- jury, in short, was not in popular estimation considered a crime ; and it appears from another statute, not less famous than that of Winchester, that Englishmen had in the reign of Edward I. as little hesitation in swearing falsely to deprive a man of his land as to screen a brother brigand from punishment. CHAP. III.] ORIGIN OF MODERN LAW-COURTS. 221 With the attempt to render the ancient system of police effective was combined a change in the method of administering justice. After Magna Carta, in changes in which it was provided that Common Pleas of adminis- should not follow the king's person, the King's '^""^ justice. Court branched out gradually into the Courts of King's Bench, of Common Bench or Common Pleas, and of Exchequer, which three Courts, however, did not absorb quite the whole of the functions of the original stem. The Justices in Eyre continued their circuits, but in the reign of Edward I. the commissions by virtue of which they sat began to be more clearly defined. In this reign the distinction between the Commission of Nisi Prius or Assise and the Commission of Oyer and Terminer was well marked, and Justices of Assise became also Justices of Gaol Delivery. In the first, year of the reign of Edward III. good and lawful men in each county were appointed to keep and maintain the peace ; and our modern Justices of the Peace seem to have been developed out of these ancient guardians. In short, nearly the whole of the machinery by which justice is administered in the present day was, nominally at least, in existence early in the reign of Edward III. The difficulty of repressing crime, however, caused some fluctuations in the criminal law, especially with respect to the issue of Commissions of Enquiry and of Oyer and Terminer. The assignment of special Justices to enquire what persons had committed offences of special magnitude, or to try offenders mentioned by name, begins early in the reign of Edward I. ; and the practice is con- tinued long afterwards — sometimes in the appointment of Justices of Trailbaston, sometimes in the appointment of Justices who, if not so designated, had the functions of 222 JUSTICES OF TRAILBASTON. [chap. hi. the Justices of Trallbaston. Trailbaston seems to have been a term for which brigandage is the nearest modern equivalent — to have designated the crimes perpetrated by armed bands which either had a fixed rallying-point or wandered about from county to county, murdering, pillaging, making prisoners, and setting fire to houses. The extent to which the evil prevailed, even in the com- paratively tranquil reign of Edward III., will be described in another chapter. For the present it may suffice to mention that the special commissions were as un- popular as the earlier eyres had been on their first in- stitution. The statutes contain numerous references to abuses, and attempts to provide a remedy. A petition was presented in Parliament on behalf of persons who had been concerned in indicting offenders before the Justices of Trailbaston, and who had obtained convic- tions. They complained that, after payment of a fine, many of those who had been justly condemned con- trived by unfair means to be placed on inquisitions and juries, so as to be avenged on the accusers by means of false accusations. Two years before the Black Death, Parliament advised the king that the peace would be better preserved by Guardians duly selected in each county, than by Justices acting under a Commission of Trailbaston, and strangers to the neighbourhood. The suggestion did not have the immediate effect of abolish- ing special commissions, but the popular feeling which it indicated led, at a later period, to an increase in the number of these Guardians, to the acquisition by them of the name of Justice, and at length to the transfer into their hands of some powers previously held by the hated Justices of Trailbaston. The transition of Justices of Trailbaston into mere CHAP. m.J JUSTICES OF THE PEACE. 223 Justices of the Peace is well illustrated by the form of the commissions to both. One of the chief origm of offences into which those who acted under spe- the Peace. cial commissions were to enquire was that of carrying arms in time of peace — at fairs and markets, and in the presence of the king's ministers. The Statute of North- ampton, passed in the second year of the reign of Edward III., was specially designed to meet this evil, and was usually mentioned in the special commissions. As soon, however, as the Justices of the Peace were regularly appointed according to a definite system, they were commissioned to enforce the observance of the Statute of Northampton, as well as that of Winchester, and, in later times, of others made for the same purpose. Our modern Justices of the Peace, therefore, whose office is now practically little more than honorary, are the sur- viving monuments of a time when England was in a state of brigandage, which the people at large were not very anxious to suppress. It may perhaps seem strange that, when kings and their advisers were striving, generation after generation, to prevent infractions of the peace, there was no ^he Law of well-understood definition of the crime of treason '^'^^^^°"- before the passing of the Statute of Treasons, in the reign of Edward III. There were previously, no doubt, some vague maxims on the subject, to which the statute gave fixity and precision ; but, when the position both of the king and of the national assembly was ill-defined, it was impossible that crimes against the governing powers could be classified with accuracy. Much has been written by lawyers and by historians to show, on the one hand, that strict hereditary succession to the crown has been the law from time immemorial, and, on the other hand, 224 THE LA W OF TREASON. [chap. hi. that the council of the nation, by whatever name known, always had the right of electing and deposing kings. To those who have considered the manner in which our forefathers actually passed their lives it will appear idle to speak either of an original right of succession, in the abstract, or of an original right of election. In accordance with the regard paid to the family tie, even among the most barbarous tribes, the custom arose that the son might, if he could, hold what his father had held before him. It was a custom which was naturally applied to the throne, as well as to a house or land. But men who have no knowledge of letters are not governed by abstract ideas, and deal with each matter according to the means at their disposal and the impulse of the moment. The king who showed signs of weakness was an object of attack ; and if he was dethroned, it was not by virtue of any fundamental principle in the old English constitution, but simply because the party of his enemies happened to be stronger than his own. The absence of definite legal maxims, and the attempt to give the proceedings of a strong party a colour of Illustration ^^S^^ity' ^^"^ both conspicuous lu the treatment ofTiers^ "^^^^ of Piers Gavaston, the favourite of Edward II. Gavaston. p^g ^^g ^^^ accuscd of trcason, or of Lese Majeste, which was the earlier name for High Treason of a particular kind, but he was sentenced by Parliament to perpetual exile as an open enemy of king and people. The offences which were, in the aggregate, construed as overt hostility, were not individually treasons according to the later statute. Gavaston, as alleged by the stronger faction opposed to him, had given evil counsel to the king, whom he had enticed to do wrong ; had collected all the king's treasure, and removed it out of the kingdom ; had CHAP. III.] GA VASTON AND THE DESPENSERS. 225 assumed to himself the royal power and dignity, by taking oaths from men that they would live and die with himself against all others ; had estranged the heart of the king from his lieges ; had put away good ministers, and substituted men of his own party ; had caused grants of crown lands to be improperly made ; had maintained robbers and murderers, for whom he had obtained the king's pardon ; had led the king to the seat of war with- out the consent of the baronage ; and had procured blank charters under the great seal, in deceit of the king and to the damage of the crown, The char-ges brought against the Despensers, father and son, were substantially the same as those brought against Gavaston. When Gavaston returned to ii,„stration England and fell into the hands of his enemies, ca°s?s'oAhe he was simply beheaded. The fate of both P«p«"=«"' Despensers was, however, that of traitors, though they did not suffer according to due process of law. Both were drawn and hanged, and the body of the son was beheaded and quartered. The true character of these executions is best illustrated by the events which followed them. The victorious barons conducted themselves simply as victors in a private war- They not only im- prisoned the adherents of the Despensers, but carried fire and sword into the lands of their enemies. They acted there precisely as a victorious but uncivilised king would have acted in a hostile country through which he was marching. The deaths, however, of the Despensers are remark- able because they were brought to pass at a time at which the punishment for High Treason, afterwards fully esta- blished by law, first comes prominently into notice. In all the cases of Treason during the reign of Edward II. VOL. I. Q 226 PUNISHMENT FOR TREASON. [chap, hi, of which the records have been preserved, the first ob- ject of all concerned — except the accused — was to give The punish- ^o^'^^or to the Sentence, the last to give fairness H?ghTreason *° ^^^ tx'vsX. The proceedings against Andrew Ssl^^ed"^™ Harcla, Earl of Carlisle, are thoroughly charac- '" "■ teristic of the age. He was thrown into prison, and the accusation against him was heard in his absence. He had no opportunity of making any answer, and was brought before his judges only to hear their judgment, which the Court, sitting under a special commission, delivered at some length. The concluding sentences are worthy of notice, as they show the grounds upon which a portion of the horrible penalty for treason was justified. ' The award of the Court is that for your treason you be drawn, and hanged, and beheaded ; that your heart, and bowels, and entrails, whence came your traitorous thoughts, be torn out, and burnt to ashes, and that the ashes be scattered to the winds ; that your body be cut into four quarters, and that one of them be hanged upon the Tower of Carlisle, another upon the Tower of Newcastle, a third Upon the Bridge of York, and the fourth at Shrewsbury ; and that your head be set upon London Bridge, for an example to others that they may never presume to be guilty of such treasons as yours against their liege Lord,' In those rude times men had of course not ar- rived at that refinement of doctrine according to which d ^^y ^^ sovereign's advisers are responsible for Sfosl^''^ the misgovernment of the sovereign. It fol- sovereign. lowed, therefore, without any abstract theories of constitutional right, that when a king persisted in a course of action which was injurious to the realm, or which a party sufficiently strong chose to declai-e injurious, CHAP. ili.J DEPOSITION OF EDWARD II 227 he could be represented as a criminal, and subject to punishment. Parliament, or rather a powerful section of Parliament, in this manner gave a sanction to the deposi- tion of Edward II., when it had been already accom- plished in fact by force of arms. The transference of the crown to Edward III. was, indeed, no more and no less constitutional than the execution of Harcla was legal. It came to pass because it was the wish of those who had the might to bring it about. If Parliament decreed that Edward II. should cease to reign, Parliament also decreed that Roger Mortimer should be drawn and hanged as a traitor before he had been heard in his own defence. A later Parliament declared that the latter sentence was illegal, and there is, in fact, no better evidence of legality in the one case than in the other. A long list of charges was drawn up against Roger Mortimer, a long list of charges against Edward II. ; but force, not law, was brought to bear against both. If any difference is to be detected in the mode in which the two sets of articles of accusation were compiled, it is, that so far as Mortimer was concerned, they were precise, so far as the King was concerned they were vague. Edward, said the Parlia- ment, had shown himself unable to govern, and had been governed by others who advised him ill, had neglected the affairs of the realm, had lost the kingdom of Scotland and other dominions, had injured Holy Church, had violated his Coronation Oath, and had manifested no disposition to amend his conduct. It may have been true that he had erred in all these points, and there may have been a gain to England when he lost his throne ; but he was a prisoner, unable to speak for himself, when his enemies denounced him in Parliament at the instigation of his adulterous wife and her paramour, and it is difficult Q 2 328 TREASON AND SUPERSTITION. [chap. hi. to regard the end of his reign with more satisfaction than the hideous murder which put an end to his life. When a sovereign has been declared unfit to rule, and a successor has been appointed by a dominant faction, Accusations ^^ partisans of the old king and of the new fromcoSJipt ^^i^s feel themselves entitled to pronounce their motives. enemies traitors. In the- fourteenth century- there was hardly so much as an attempt to conceal the motive by which the actors on either side were commonly impelled. To succeed was to gain possession of the lands forfeited by unsuccessful opponents. All the exe- cutions for treason at the end of the reign of Edward II. and the beginning of the reign of Edward III. were fol- lowed by a redistribution of property. IVIortimer, -syho was thq chief agent in deposing Edward II., the husband of hjs paramour, the queen, Illustration- ^asely deceived the Earl of Kent, whom he Fria^^ndthe ^ssured that the deposed king was still alive Spirit. ^^^ ^ prisoner. The object -was tP gain what the Earl would lose by attainder following upon rebellion. The Earl, who was brother of King Edward II., and uncle of King Edward III., resolved to strike a blow for the release of the supposed captive. Before finally com- mitting himself, however, to so desperate an undertaking, he attempted to ascertain whether Mort}m.er's statement was true or false, The superstition of the age suggested to him an infallible test. A certain friar was believed to have the power of summoning spirits, who would answer truly any question put to tbern. The Earl was made to believe that a demon had appeared, and had announced that Edward II. was still alive. It is not certain whether the friar was in collusion with Mortimer or simply gave the answer which he thought would be most agreeable to CHAP. III.] CORRUPTION UNDER EDWARD HI. 229 the Earl. The result, however, was, that an insurrection was planned, and that the Earl was condemned and exe- cuted as a traitor. The story of the Spirit and the Friar, as related by the Earl himself, was thought worthy of special mention in a letter written by Edward III., in which the Pope was earnestly requested not to accept as true any other versions of the affair. At a time when men hoped to rise by treason and by false accusations of treason, it will be readily believed that the other paths by which wealth was sought spread of were not commonly the paths of honour. Com- atte™pt°"o missions to enquire concerning the wrongs done ^ ^'' ' ' by government officials, abundant durirtg many centuries, are specially abundant during the long and comparatively tranquil reign of Edward III. Under him greater efforts were made than had ever been made before to improve not so much the laws as the manner in which the laws were administered. Various expedients were tried, but the most comprehensive scheme was put into execution in the fourteenth year of his reign. Commissioners were appointed to investigate all manner of oppressions, wrongs, damages, and grievances charged against all per- sons holding office, or their subordinates. Not even the Justices of either Bench, nor the Barons of the Exchequer, were exempt from the enquiry, which applied to justices of every description. Escheators, sheriffs, coroners, admirals of fleets, constables of castles, foresters, gaolers, arrayers of the forces, archdeacons, deans, the heads of various departments of the Exchequer, and numbers o£ inferior officials were mentioned in the commission, the scope of which was to ascertain what hardships, and of what character, had been inflicted upon the people throughout England, 23° CHARACTER OF THE JUDGES [chap. hi. This gigantic project may be compared with one of the labours of Hercules. It was an attempt, by no means TheOrdi- successful, to cleanse away a foulness greater oaTonhe than mythology has attributed to the Augean Justices. stables. Yet one important result appears to have followed it. The corruption of the judges was no longer, if indeed it had been previously, a matter of doubt ; and a serious effort was made soon afterwards to check it by means of the famous Ordinance and Oath of the Justices. By the Ordinance it was provided that the justices should thenceforth administer equal law and execution of right to all the king's subjects, rich and poor, without respect of persons, and without regard to letters or instructions from the king, or from any one. They were to make oath that they would act in accordance with the terms of the Ordinance, and that they would not take, either directly or indirectly, either in private or in public, from any one having plea or process pending before them, any gift or reward of gold, or of silver, or of anything whatsoever, except meat and drink and those of little value, and that they would not accept robe or fee from any one but the king so long as they should hold the office of justice. In order to recompense them for the sacrifice thus demanded of them, it was fur- ther ordained by the King and Council that their fees should be increased to such a degree as ought reasonably to be held sufficient by them. This Ordinance was the last of any importance made in the period embraced by the present chapter. Its prO' visions reveal to some extent the partialities of which the Justices had previously been guilty, and, from the manner in which reference is made to the future, have the effect of condoning all that had been done in the past. Three CHAP. III.] IN .THE REIGN OF EDWARD III. 231 years after this most wholesome attempt to reform the administration of the law, society was thrown into utter confusion by the horrors of the Black Death. But mean- while there was a sufficient opportunity of testing the new system ; and the year before the Plague is conse- quently a time at which the real character of the age may be seen in its most favourable aspect. To show from copious and unimpeachable evidence, and in full detail, what kind of life our forefathers were then passing, is the object of the following chapter. 232 CHAPTER IV. ENGLAJII) I^f fHE YEAR BEFORE TttE BLACK DEATH. A FOREIGNER visiting England in the year 1348 would have landed most probably at Dover, where men of many nations and of all ranks were continually meeting. There he would have seen ecclesiastics Scene at concealing in their convenient robes forbidden °^^^' missives from Rome ; traders returning from the Low Countries with profits in base money, out of which they hoped to make profits still greater ; captains brag- ging loudly of their deeds at Calais, which the English had just taken ; adventurers intending to settlq in the town from which the French had been expelled ; widows bound on a pilgrimage to the Holy Land, and attended each by a chaplain and two stout yeomen. One of the first objects, however, which would have met the traveller's eye, when he set foot on English soil. Sanctuary- 'w^ould havc been a group of murderers and ""^"' robbers, who were to be set loose somewhere on the continent of Europe, there to gain their living as best they could. Criminals who had taken sanctuary were permitted to leave it, unmolested, upon making oath before the coroner that they would quit' the realm on a given day. Dover was the port most commonly assigned to them, and if they failed to reach it at the appointed time, they forfeited all the privileges of CHAP. IV.] SANCTUARY-MEN AT nOVER. 233 abjuration. Unless, therefore, they joined some band of brigands or were murdered on the way, they, no doubt, presented themselves for embarkation, in strict accord- ance with the coroner's order. Thus the stranger might, if he pleased, and if he spoke English, have heard from these desperate wayfarers much that he might have desired to know about the condition of the roads in every part of the country. He might have found among them not only some who had travelled from Surrey or Middlesex in three days or four, but some who had travelled from Yorkshire in nine. Before he quitted Dover he might, if he had been so fortunate as to escape an attack from pirates in his passage across the Channel, have learned some- The seamen . of the Cinque thing new concernmg the manners and customs Ports. of the sea-faring population. He would have found there a race of sailors who were too hardy to fear death in any form, and in whom courage took the place of every other virtue. He might have listened to stories in which the peril that had been encountered and survived gave the point to every sentence, and in which the sons were ex- horted to dare what their sires and grandsires had dared before them. He would have discovered that the winds and the waves were not the great excitements of life for men who had battled with them from childhood, and that the hand-to-hand struggle with other men was, on sea as on shore, considered to be man's true vocation. He would have been told of great deeds done by the seamen of the Cinque Ports, and especially by the seamen of Dover how they were a terror to the French and the Flem- ings — how they were always ready to put off when there was booty to be seized or revenge to be exacted — how they constituted themselves the sole judges in all mari- 234 CHARACTER OF SAILORS. [chap. iv. time affairs which affected their district, and sank the ships of their enemies, whether the king had declared war or not. Had he expressed his admiration of the English character as illustrated by them, they would have declared that they were not as other Englishmen, and cared nothing for the lubbers of the other coasts. He ought to know that any one of the Cinque Ports was more than a match for any other port in England. The Yarmouth men, indeed, thought much of themselves, though Yarmouth itself was no better than a dependency of the Cinque Ports, and had once brought a craft of out- landish look, and painted like a Flemish strumpet, to the South Coast, as a present for the king's son ; but the Cinque Port men had soon shown that they and their ships were made of stouter stuff than Yarmouth busses or Yarmouth crews, and had smashed the pretty toy to splinters. They would do the like to-morrow, in spite of the admiral, if they had the chance ; and if the traveller wished to know what spirits there were in Dover, he had but to watch when the tide was flowing, and he might see a prize brought into harbour. Foreigners, except perhaps those who had been reared in the Italian cities, were not in the fourteenth Tourney from ceutury morc accustomed to luxuries than London. Englishmen. Carriages and post-horses had been forgotten since the days of the Romans. The traveller from France, from Germany, or from the Low Counti'ies would therefore have been unconscious of hardship when informed that his journey inland must.be performed on horseback. If, by any chance, he had demanded some better mode of transit for his luggage, he would have been told with truth that the Records of the High Court of Chancery were moved from place to place CHAP. IV.] A JOURNEY TO LONDON. 235 on a pack-horse, and that his goods could not be more securely carried than the most precious documents in the realm. As he rode onwards he would have become aware that there was an extreme dearth of provisions, that the whole of Kent had been exhausted in furnishing supplies to the force besieging Calais, and that, although the requisitions had ceased, the prices still betokened a famine. When he came to Rochester or any other walled town in the evening, after sunset, he would have found a watch at the gate, which would have regarded him with suspicion, and possibly have deprived him of his liberty till the morning. If, when he perceived that the gates were closed, he sought a lodging in the suburbs, he would have found but a surly landlord, belonging to a class which the lawyers believed to be in league with brigands. If he was not rejected by an inn- keeper who doubted his character, he would have been entertained by a host whose intentions he would have had good reason to fear. If he retired to rest without the walls, and escaped murder, he would probably have been disturbed by the hue and cry raised in pursuit of some robbers. If he slept in the house of a burgher, within the walls, he would, not less probably, have been roused by some nocturnal affray in the streets. The journey from Dover to London, with pack- horses in attendance, could hardly have been completed in less than four days. If the traveller had Arrival in escaped all the dangers of the road, he would, ^°^^°'^- in somewhat less than a week, have found himself in sight of the greatest city of England, which he must have entered by London Bridge. He would have passed through the suburb of Southwark, already noto- rious for its sanctuaries and its stews. As his horse 236 LONDON IN 1348. [chap. iv.. picked its way slowly over the uneven ground near the Surrey side of the river, he would, if he chanced to be a Fleming, have been accosted in his own tongue by the ribald women who had left Flanders for England to traffic in vice. If he had reached the foot of the bridge, crossed it in safety, and been permitted to enter the city, he would have perceived that at the end of every street and alley there were stout chains and barriers either obstruct- ing the passage or made ready to obstruct it when occa- sion should arise. This, he would have learned, was a device to impede the flight of burglars, thieves, and other offenders who, when pursued, commonly ran towards the river, in the hope of escaping to Southwark. When he rode up to an inn and asked for a bed, he would have had many questions put to him, and many cautions impressed upon him. If he stayed longer than a day and a night, his host would have become respon- sible for him, as in the lawless days before the Conquest, and would have been anxious that he should not bring the house into ill-repute. He would have been warned that even citizens of good fame were not permitted to go out after sunset, either with arms or without a lantern, and that, if he had any prudence, he would not go out at all till the morrow. If he disregarded these hints, he would have been likely to pass the night in the Tun on Cornhill, or in one of the City Counters ; for if he fell into the hands of the watch, though unarmed and bearing a light, he would have been regarded as a stranger, wan- dering about the streets with the object of breaking the king's peace. In the morning, no matter where he might have lodged, he would not have had far to walk to visit any of the markets. From the eastern counties corn was brought CHAP. iv.J THE MARKETS AND THE STREETS. 237 to Graschirche, or Gracechurch ; from the western coun- ties to Newgate ; and in the open space near either he would have seen troops of pack-horses with scenes in the panniers of grain or malt, and here and there '"^'"'"^"^• a country cart. From the mode of conveyance he might have inferred the condition of the roads which were nearest to the city ; but his attention would soon have been diverted by a dispute between a peasant and a corn-dealer or baker. It was the common lot of the rustics to discover that they had mistaken a thief for a purchaser, that the townsman insisted on keeping their wares, and steadily refused to pay the price, and that it was difficult to obtain redress when a citizen of London chose to be dishonest, and his victim came from Upland. Turn where he might, the traveller could hardly fail to light upon some group which would tell him the char- acter of the people he had come to see. Here, pubuc perhaps, a baker with a loaf hung round his p"™='^™^"'=- neck, was being jeered and pelted in the pillory, because he had given short weight, or because, when men had asked him for bread, he had given them, not a stone, but a lump of iron enclosed by a crust. There, perhaps, an oven was being pulled down, because a baker had been detected in a third offence, and had been compelled to abjure trade in the city for ever. If there were no bakers to be punished on any particular day, the pillories could never have been all without occupants. They were used to punish the sellers of bad meat, poultry, and fish, of false jewellery, of oats good at the top of the sack and bad below, the beggars who pretended to collect money for a hospital and kept it for themselves, the gamblers who played with loaded dice, the fortune-tellers who promised to recover stolen goods, the suborners of false 238 PUBLIC PUNISHMENTS. [chap. iv. accusations, the cut-purses, and the petty pilferers of every kind. It not unfrequently happened, too, that a passer-by might see some greater offenders exposed to the scoffs of the city rabble. Among them were forgers of charters, deeds, bonds, or letters, counterfeiters of the seals belong- ing to the Pope or to English nobles, bedels of wards who had wrongfully set the alderman's mark upon defective' measures, per^onators of holy hermits, of the king's or the sheriff's officers, of summoners in the Ecclesiastical Courts, of purveyors. In another place might have been found a woman on the cucking-stool, to which she had been sentenced as a common scold. In some of the principal streets there would probably have been an opportunity of watching the process by which all kinds of sham wares — sham girdles, sham gloves, sham pouches, sham caps, and sham measures were publicly destroyed in a bonfire. Should the stranger have grown weary of what he saw in the city of London, and strolled, in search of the The highway ^^^ courts, to the city of Westminster, a ghastly to°mst-"'^°" spectacle would have been presented to his minster. eyes. All the lepers of London, and others from the villages of Middlesex, flocked to the most fre- quented road in England, and seated themselves upon it, or near the paths across the fields which led into it. The chief nobles of the realm, the clergy of the two cities, the judges, the pleaders, and the officers of the courts were continually passing to and fro, and, as each came near, the lepers would raise themselves from the ground, show their hideous sores, and beg for alms in the name of God. The foreigner who visited London in the year 1348, might have been told that an order was about to issue for the clearance of the highway, and that the lepers CHAP. IV.] THE LEPERS AND ALMSGIVING. 239 would be warned to betake themselves into the country, and to remain at a safe distance from all places of public resort, so that the business of the state might be conducted without danger of contagion. Had he waited to hear the royal proclamation read, he might have been struck by the extreme feebleness of the attempt to preserve the health of the people, and to provide for the poor wretches who were the objects of terror. The ordinary frequenters of the line of traffic were to be examined by competent persons, and, if pronounced leprous, were to be removed by the sheriffs. It was the king's wish that, though they were to be cut off from intercourse with the magnates of the land,, they should not suffer from the loss of alms ; and the sheriffs were instructed to stimulate almsgiving for their relief at every fitting opportunity. But. in the anxiety to banish them from one place, no care was taken to assign them another. They were to be put away anywhere from public view ; they were not to show themselves even in quest of food ; but if they could find any messenger free from their disease, who would carry necessaries to them from the inhabited districts, they might be permitted to accept what was brought. In those days there were hospitals for the Knights of St. John of Jerusalem, and for many a religious body ; hos- pitals for the sick existed apparently only in name ; of charity there was little, though of almsgiving there was abundance. After inspecting the law courts, the foreign visitor would probably have entered Westminster Abbey. As he mentally compared it with similar buildings Westminster on the Continent, an attendant might have in- law-suit's. formed him that business of great interest was about to be transacted close at hand. The king had just directed 240 WESTMINSTER ABBEY IN 1348- [chap. iv. an order to his treasurer and chamberlain to defray the expenses necessary for the due care of his grandfather's body. The corpse of Edward I., whose memory was always held in great reverence, had been carried to the Abbey, and there preserved in wax, which was renewed from time to time, and which it became necessary to renew in 1348. A bribe to a garrulous official was not less efficacious in those days than in the present, and the foreigner might not only have been present at the waxing of an English king's remains, but might, also, had he pleased, have acquired some knowledge of the tone of thought which prevailed among the abbot and monks. He would have learned that the chief grievance of the moment was the quashing of a jury-panel in a cause which would probably have been decided in favour of the monastery. The Court of King's Bench had held that as some of the jurors were the abbot's tenants, they could not be impartial. The matter in dispute was the liability of the abbot to repair the highway between Tothill and the ' Almorigate,' in Westminster, which had become a common nuisance, and was impassable alike to the king and his lieges. Had the traveller felt any surprise, at the moment, that so powerful a monarch as Edward HI. had been compelled to turn aside from the main road because it had fallen into decay within a stone-throw of his own palace, he would have learned, after no long time spent in England, to hear far worse tidings without the least emotion. If the landlord of an inn had been asked at this time in what direction a stranger about to leave London might State of the ™°^^ Conveniently travel, he would have replied roads. , i^y ji^g j.^^^ ^Q Hertford.' The king hawked this year on the banks of the Lea : he had commanded the CHAP. IV.] THE ROADS AND THE COUNTRY. 241 sheriffs of Essex and Hertfordshire to make due prepara- tion for him, and to enforce the repair of all bridges by- distraint upon the persons who were liable for their main- tenance. If the roads were good anywhere they would be good in that country ; but if innkeeper or friend told truth, they would have added that the roads were good nowhere, and that it would be folly to expect better travelling up-land than could be found near Westminster. The burden of road-making, hateful to all land-holders, was especially hateful to the clergy, who were continually asserting that their land was free from it, and acting upon their own assertions until the law courts settled the doubt. The wayfarer, therefore, could not ride far without coming to a spot in dispute, where there was no good Samaritan to help him on his journey, and where he might probably lame his horse, or break his own neck, through the neglect of some neighbouring lord or abbot. The whole aspect of the country was different from that of the England with which we are familiar in the nineteenth century. In many places the roads jjigj^jjuigj were driven through tracts of wood-land, which a?™c't'ofthe should have been, and perhaps were, cleared '=°™"'y- according to law, for the space of two hundred feet on either side. Enough corn was grown on the average to support the population, but little, if any, more ; and the greater part of the open land consisted of pastures, from which was drawn England's chief export and source of wealth — her famous wool and wool -fells. A far greater portion of the soil, however, was under water than at pre- sent. There was many a bourne or beck which, like the Holebourne in London, is now dried up ; many a river which, like the Fleet, was once navigable, but is now barely remembered by name. Pools and meres abounded in VOL. I. R 242 DANGERS OF TEA VELLING. [chap. i-v. every county. Every land-holder who owned a close had his lakes and fish-ponds, which supplied him with much of his food during many months of the year, and which commonly proved themselves an irresistible temptation to all the lawless spirits of the time. Through this abund- ance of wood and water, and the carelessness or wilful neglect of those who should have repaired the roads, a horseman was impeded by so many obstacles, on his journey, that the ordinary Latin word used as an equiva- lent for our ' travel ' was ' labour,' and members of Par- liament were chosen with special reference to their powers of labouring in this special meaning of the term. Nor was the expression ill applied to those who had to make their way in spite of broken bridges, of swollen streams, of roads ill-repaired, and of morasses presenting the appearance of firm and elastic turf Sloughs and pit-falls, however, were not the greatest dangers by which the roads were beset. Though it Dens of ~ might be notorious in the neighbourhood that robbers. there was a den of robbers near the highway, there might still be no one to warn the traveller ; and after he had been murdered, it was improbable that any one would be found to say who had done the deed. Such an incident as this, however, was altogether insignificant when compared with the organised brigand- organised ^.gc which prevailed in every part of the country, brigandage. j^Quses Were Set ou fire day after day ; men and women were captured ; ransom was exacted on pain of death to those who refused it, and even those who paid it might think themselves fortunate if they escaped some horrible mutilation. The ordinary powers of the law were, as stated in many commissions of enquiry, quite insufficient to repress the evil ; the clear space on CHAP. iv.J ROBBERS AND BRIGANDS. 243 either side of the highway, even where the Statute of Winchester was not set at nought, had no effect in deterring bodies of armed men from attacks on weaker parties of travellers ; the gangs which lived by rapine had no care to conceal themselves for their own protection, and lay in ambush only in order that their intended victims might not escape them. The time at which it might have been hoped that merchants travelling together would have been most secure, was the time at which the brigands Attacks at reaped their richest harvest. Nothing was so markets. attractive to the robbers as a fair or a market. They com- monly stationed themselves at a short distance from an entrance to the town at which one of these great gather- ings was to be held, and did almost as they pleased with the wares, the money, and tTie persons of all who came to buy, to sell, or to make merry. Sometimes warning was given to traders on their way, and they prudently turned back ; this was considered a great grievance by the abbot of Abingdon, who lost the tolls and profits which he expected to gain by Abingdon fair, and who complained that his monks were beaten, and the timber of his park was cut down and carried away. Sometimes the leaders of the bands would change their tactics, and secure their prey by a still bolder and more comprehensive plan. They would wait Bristol in the until the fair was at its height, and the towns- brigands. people and strangers supposed themselves to be free from danger. They would then make a sudden on- slaught, with all the fury of an invading army, would destroy the temporary booths, lay waste the town itself with fire and sword, take the plunder that most pleased their fancy, and, harpy-like, mangle all that they could not R 2 244 A BRIGAND-KING IN BRISTOL. [chap, iv, move. In the year before the Black Death, Bristol had been for some time in the hands of an armed force, of which the leader seems to have possessed more than ordinary audacity and skill. His men regarded him not only as their captain, but as their king. He issued proclamations in the royal style, commanding one thing, prohibiting another. He took military possession of the port, seized the ships in it with their cargoes, and did not even spare those which were about to sail with provisions for the king's lieges in Gascony. In a commission dated some months later than the first attack, it is recited that his followers, in no small number, were roaming about the town with arms, setting the king's officers at defiance, threatening, robbing, mutilating, and killing. The docu- ment concludes, as in innumerable similar cases, with a statement, gravely made, that such doings are contrary to the form of the Statute of Northampton, and that the male- factors are to be lodged in gaol when found and captured. Burghers and merchants were by no means the only persons who suffered at the hands of the brigands. Plunder Wherever there was booty of any kind to be from the King taken, it was almost certain that an attempt and his Sub- jects, would be made to take it — no matter whether it was money, or a cask of wine, or a prisoner of war — no matter whether it belonged to a chapman, or to a knight, or to the king himself. Two knights were conducting to London a Scottish prisoner — one of the Stuarts — who had been captured in the battle near Durham. On the road a gang of malefactors made an attack with such success that they secured the prize and carried it back to Scot- land, where they accepted a ransom of fifty pounds — the real value of the prisoner being estimated at not less than a thousand. The king's envoy returned from Spain CHAi*. IV.] LOSSES OF QUEEN PHILIPPA. 245 in a Spanish ship, which put into Plymouth harbour.' Before she could be unladen, a band of armed men forced their way on board, overpowered the crew, and were not deterred from seizing anything they found by the information that it was the property of the king or his ministers. At Thame the servants of the Black Prince went out to fetch supplies for his house and provender for his stables ; they returned, beaten and bruised, and without even so much as the carts and horses which they had taken with them. A trader in the employ of Queen Philippa was entrusted by her with some of her jewels. He lived in a neighbourhood where, it seems, one Adam the Leper had command of a gang. As soon as it was known that booty was to be had, a nocturnal assault was made upon his dwelling. He resisted, and was besieged within his own walls. When all other means failed, the house was set. on fire, and the merchant was compelled to give up the royal treasure. At Wighton, also, Philippa sustained a loss of five hundred pounds — a sum equal to many thousand pounds of modern money ; her collector of rents was attacked and robbed on his way home ; and yet so feeble was the law, or so faint the sense of justice in the abstract, that there is appended to the very commission in which the story is told a note which annuls it, and stays all further proceedings — because the offenders had made restitution ! So small was the respect for authority of any kind, that even the king's most trusted messengers were in peril of their lives after they were housed for ,, , , , ■i ■' Murder of the the night. A serjeant-at-arms, despatched -^ant-lt-^"^ upon important business of State, halted, on his '^™^- journey northwards, at a Yorkshire village. The house 246 CRIMES ON THE MARCHES. [chap. iv. in which he stayed was broken open, and set on fire ; and the child of his hostess, a widow, was burnt to death. The Serjeant himself was dragged off to a neighbouring forest, and there deliberately butchered. If it could be said with justice that one part of England was at this time more notorious for crime than state of the another, the Marches towards Scotland might vrard^scot- claim the pre-eminence. From Newcastle north- wards the whole country had recently been devastated by the Scottish invaders. The tenants of the king's demesnes had lost everything, even to their houses. They were wandering homeless, hither and thither, and many of them, no doubt, joined the outlaws, and resolved to inflict on others the sufferings which they had endured themselves. The warlike spirit which had been handed down from the barbarous ages was still pre- dominant in England, and naturally existed in greatest force near the seat of war. Centuries afterwards the border-land towards Scotland was famous for its crimes, and not the least of the benefits conferred by the Union was the annihilation of the Marches. It is, therefore, no matter for wonder that in early times the northern forests were the scenes of the greatest atrocities. The distinction, however, between the criminal popu- lation and the better classes was by no means well -crimeandthe marked in the fourteenth century. If the vatewar. townsmen suffered sometimes at the hands of the outlaws, there was a class of men in some of the towns which had no little sympathy with the brigands outside, and acted in a manner precisely similar. It is difficult to conceive that Bristol could have been taken and held by a hostile party of Englishmen, who had no friends within the walls. And, whatever doubt there " CHAP. IV. J LOVE OF PRIVATE WAR. 247 may be upon that subject, it is at least certain that Yar- mouth could send forth more than three hundred men, with ensign displayed, to harry the surrounding country, to burn, to rob, to hold to ransom, and to slay. Nor is it less certain that the whole band and their leader were pardoned, in consideration of the good service rendered by him and by the men of Yarmouth to the king. In such incidents is to be discerned the vitality of the ancient right of private war, of which brigandage was only one development. Some of the Bristol men most probably had a grudge to satisfy against ship-owners of their own or another port ; the Yarmouth men may have had some quarrel with a neighbouring town or land- owner ; but the criminal tendencies of modern times peem in many cases to have been handed down from a period when that which is now considered crime was thought very nearly akin to virtue. The knights, or, in other words, the class correspond- ing to our modern country gentry, were commonly engaged in exploits which it is extremely diffi- . . o >:> r J Acts resem- cult to distinguish from brigandage ; and the ganfagecom- clergy — from the abbots down to the chaplains Knights and —followed the example set them by the ^y'"^^^^^'^- knights. The Countess of Lincoln had a free warren and chace at Kingston Lacy. A band, more than fifty in number, entered, killed the game, and deliberately cut down the timber, to the value of two thousand pounds of ancient currency, and carried it off. Among the accused were the Abbot of Sherborne, the Abbot of Middleton, and the Prior of Horton. Three knights, and a force more than sixty strong, with many chaplains in its ranks, broke a close belonging to the Archbishop of Canterbury, drove off his cattle, cut down his trees, reaped his corn. 248 DEEDS OF KNIGHTS AND CLERGY, [chap. iv. and marched quietly away with the plunder. A gang of more than seventy, among whom were no less than five parsons of churches, committed a similar offence at Carlton. Two parsons of churches were among those accused of breaking a park owned by the Earl of North- ampton, and stealing his cattle in one place, a vicar of doing the like in another place, and two knights of break- ing a house at Colne. The Prior of Bollington was charged with a robbery of horses, cattle, sheep, and pigs. A knight and a chaplain aided in taking goods and putting the owner under restraint. Three clergymen, who were either parsons or vicars of churches, and two others, who had attained some clerical dignity, were con- cerned with a knight and about thirty inferiors in damaging a park of the Bishop of Durham, at Howden, to the extent of a thousand pounds. A knight, a parson, and at least two others of the clergy, broke the close and house of a Prebendary of York. The Sheriff of Devon- shire and his followers, not acting by virtue of a writ, made an attack upon one Richard de Stapleton, and deprived him of property worth a hundred pounds. It would be tedious to enumerate at greater length the deeds of violence recorded on one Roll of a single year ; let it suffice to state that the Roll is only one out of many sources of information ; that it consists of three parts ; that each part consists of more than forty skins of parchment; and that among those skins there are few which do not contain one reference or many to some act of lawlessness committed by clerks or by knights. In many cases there may be reason to suspect that the actors in these strange scenes believed their leader to have some title to the land on which the outrages were committed. The subsequent statutes against CHAP. iv.J FORCIBLE ENTRY AND ROBBERY. 249 forcible entry on land in dispute in some measure con- firm this explanation. Possession by the strong arm had for so many centuries constituted the best title ^^ ^^.^ jj_ to land that the best legal claim to it was Ihe subs"^ almost valueless until practically asserted by Stes'agalnst setting foot on the soil. These gallant knights °"^' ^™ ^' and abbots, therefore, who were continually taking peace- ful occupants by surprise, may in some cases have acted in the name of justice ; but, unless it be assumed that the title of ' chivaler ' necessarily confers the virtues col- lectively known as chivalry, it must be obvious that the right to enter must have been a most convenient excuse for any adventurer who coveted his neighbour's flocks and herds, or timber, or crops, or horses, or even money. It is a most significant fact that in many instances in which the house was attacked, as well as the park or the chace, the robbers succeeded in carrying off the title- deeds as well as the timber. A few examples may suffice to show how closely connected was the mere forcible entry with open bri- gandage, and how close is the connection of close con- both with the primitive seizure of land and first barba- other property by barbarians, and with those of land by acts which, when committed at the present day, forcible entry in assertion of we denominate crimes. A tenant in chief of ^ "g^*'' »"loodshed in country were in the habit of obstructing the <^°""- judges by force. This, to use the langiiage of the records, they had done openly and notoriously on many occasions. Nor were brawls, and riots, and bloodshed by any means uncommon within the walls of the law-courts and in the presence of the Bench itself At Cambridge, when the justices were sitting, a man drew a long knife and made an attack upon the Mayor. At York a number of men — no common outlaws, but themercerg, saddlers, bakers, skinners, spurriers, and tailors gf the place — ^entered the castle, fell upon the sheriff's retainers and made them the prisoners instead of the prisoners taken according to the fgrm of the law. At Somerton, where the justices of assise were hearing causes, one Robert Mansel made a furious onslaught upon Robert Brente in the justice-hall. Mansel had friends in court who drew their swords and kniygs when he set them the example, pursued Brente to the bar, and would have killed their enemy there in sight of the judges, the jury, and all the spectators, had not assistance been found. Yet so ordinary an event was this, so little wa,s it regarded as an unpardonable offence, that the ringleader, after a few appearances at Westminster, w^s dismissed upon payment of a fine. In these scenes it is not difficult to discern once more the old partisan spirit of the days before the Conquest. All who said or did anything offensive to any p rtisanshi man able to command a few followers were at pfproltamora his mercy unless they could themselves com- ''"'* ^"""s- mand a greater, number. And when even the courts of VOL. I. s 2S8 INTIMIDATION OF PROSECUTORS, [chap. iv. law were not sacred from violence the intimidation prac- tised outside them may be easily conjectured. Nor are we left to conjecture alone upon this subject. Not only is it lamented in the Statutes of Winchester and West- minster the First that true verdicts could not be obtained from juries, but the rolls show precisely what might have been expected from the surrounding circumstances. At Dalton, near Furness Abbey, an indictment was found, at the sheriff's turn, against a notorious robber. His friends were at no great distance, and in sufficient number to overpower all who left the court. They distributed blows and threats in profusion, and with such good eff"ect that no further action was taken in the matter until there was a commission to enquire into the circumstances. In Cambridgeshire some members of one of the bands of brigands were appealed and indicted* for maihem and murder. The gang lay in wait for the appellors and the finders of the indictments, punished them for what they had done, and menaced them with loss of limb or life if they continued the prosecution. The power of the banditti could not be set at defiance, for all knew that the threats would be carried into execution upon the least provocation; and even one of the appellors who had lost his brother did not dare to prosecute his appeal. Intimidation, such as this, was not practised solely towards jurors and parties to suits, nor solely by brigands, nor solely against private individuals. It was a Armed resist- jo i c^lkctor'Tof service of no small difficulty and danger to col- Taxes. ^^^t the sums voted by Parliament to the king. All who had to pay seem to have felt themselves ag- grieved ; and the rolls teem with commissions to enquire, county by county, concerning resistance to the officials authorised to receive fifteenths, and tenths, and subsidies. CHAP. IV. J SAVAGES, BRIGANDS, AND KNIGHTS. 259 In innumerable instances it became necessary to distrain, and distraint was commonly the signal for a riot. The unfortunate collector had only too often to complain that the cattle which he had seized had been taken from him by force, that the king's writ had been torn to shreds before his eyes, that he had himself been compelled to fly, that he had been pursued from village to village, and that he had barely escaped with his life in the end. The qualities of the knight errant and the gentleman have often been attributed to the highwayman and the brigand. Nor can it indeed be disputed that Kn jghts er- the highwayman and the brigand have much in and'-nobie _ _ savages' are common with the knight errant. It has often not incapable of the meaner been supposed also that in an age when men crimes. ordinarily resort to force for the attainment of their ends, there is an absence of the fraud and cunning and chicane which are said to disgrace periods of greater refinement. Poets and romancers have taught that an open counte- nance could best have been found under a knight's helmet, a great heart under a knight's coat of mail, a hand in- capable of forgery under a knight's gauntlet. If the out- law has committed acts of brutal violence, they have been attributed partly to a wild love of freedom, partly to a hatred of the meanness which he discovers in those who respect the rights of others. A life of adventure, with the forest for a home, and the haunts of men for a hunting- ground, is a repetition, with a slight change, of the life led by the noble savage. And is it not noble to take that which others cannot keep, to gratify a wish as soon as it arises, to assert superiority over the rest of mankind by depriving them of their goods, their daughters, their wives, and their lives ? In such elements of nobility the peasants, and even the knights of the fourteenth century s 2 26o MEANNESSES OF KNIGHTS AND BRIGANDS, [chap.iv. were only a little inferior to the Teutonic hordes who overran the Roman Empire, and those hordes only a little inferior to their remote ancestors who had gained a living by the chase. The notion, indeed, of the savage, that civilisation is an unholy institution which deprives him of the world as a free hunting-ground, was by no means extinct in the reign of Edward III. In all those cases of forcible entry which have been already mentioned, the game found in the wood-lands was carried off as spoil by the attacking force, and innumerable instances might be given of ex- ploits which had no other issue. These have in our own time degenerated into poaching affrays, of which the most formidable would have been altogether unworthy of notice five hundred years ago. It is, therefore, most im- portant to enquire whether, when the savage loses his savageness he loses nobility at the same time ; whether deceit and trickery become the substitutes for threats and blows ; whether, as the intellect becomes more highly de- veloped, the moral character becomes more contemptible. If it should appear that baseness and cruelty went hand in hand in the days of barbarism long passed away, it will be evident that the progressive diminution of cruelty is at least a clear advantage without any counterpoise on the other side. There are some crimes which lie on the border-land between those which veneration for the past ranges in the Crimes on the class of the chivalrously venial and those which in betwecn^the modem times are considered unchivalrously ly^vlniaiand mean. A bold lover, for instance, breaks into rousiymean. the hcuse of the woman he desires to wed. She has no wish to place her fortune or person at his disposal, but he has a mind to secure one or both. He gives her CHAP. IV.] CRIME And romance. 261 a simple altei'native — either to be ravished on the spot or to be married on the following Saturday. It is Wednes- day, and to gain time she consents to the marriage. He is not content with her word, but exacts an oath ; he doubts her intention to keep her promise even after she has sworn ; he therefore watches her house, waylays her when she comes out, and repeats more forcibly in the open air the arguments which he had applied within walls. Such are the details of a case which appears among the records of criminal proceedings in the year before the Black Death, and which throws some light upon the treatment of heiresses who were frequently carried off by violence, and who were not protected by statute before the reign of Henry VH. If it is possible for Romance to represent the abduc- tion of heiresses and the marriage of women by compul- sion as gallantries rather than as crimes, it is at Dishonesty least out of her power to represent embezzle- * tST'Tle"^ ment as an act of virtue. But the highest ° '™'^' officials were, in the fourteenth century, not less ready to embezzle than to strike. The Master of the Horse North of Trent is no sooner dead than it is discovered that he has appropriated a thousand pounds of the king's money. His subordinates had, during his tenure of office, been following his example ; some of the animals en- trusted to their care they had sold, others they had taken for their own private use, and the rest they had per- mitted to die of hunger. Commissions to enquire con- cerning the misdeeds of officers employed in every branch of the king's service appear on the rolls at the very earliest time at which enrolments begin to be made, appear at the time now under consideration, and seem to be almost characteristic of the age of chivalry. The 262 BEGINNINGS OF FRAUD. [chap. iv. knight who becomes owner of a ship — perhaps with the chivalrous Intention of leading the life of a pirate — is not ashamed to take a cargo of wool and defraud the king by escaping out of port without paying duty. He despises the merchant, the burgher, the trader of every kind, and shows his superiority by accepting their money for the performance of certain services, and by omitting to keep his word after he has received his price. The custom of fixing the Staple of exported English wool on the continent gives him ample opportunities for the dis- play of his skill in the art of cheating a townsman ; and in the year before the Black Death there was a com- plaint that many English merchants had been killed, and that their wool, to the value of twenty thousand pounds, had fallen Into the hands of the F"rench, because the men who had agreed to provide a sufficient convoy had refused to fulfil the engagement, after levying a toll upon every sack to be exported. It need be no matter for wonder that, in an age In which the traditions of barbarism retained much of their Commerce vitality, the first rude efforts at commerce were Fraudlt'L not, In all cases, remarkable for self-denial and '^'"'' good faith. The experience of many generations had proved that the shortest way to obtain possession of land was to take It ; when property of another kind began to Increase, similar modes of acquisition at once suggested themselves, and were very commonly adopted. It has already been shown that the citizens of London were burglars a century after the Conquest ; it has been shown that in the reign of Edward III. the knights carried into trade and into their dealings with heir- esses practices very similar to those by which a claim to a manor was ordinarily asserted either rightfully or CHAP. IV.] EARLY STRUGGLES OF COMMERCE. 263 wrongfully. Neither class had as yet any regard for honesty ; and their simple idea of life was that they should gain whatever they wanted in any manner which seemed to promise the most rapid success. Commerce, for many a century in danger of being strangled by force, was thus also necessarily infected by fraud at its very birth. Where there was one individual who perceived that it was best both for himself and for the community to accumulate wealth by industry, there were a hundred round him to whom it seemed much easier to snatch the fruits of his labour away from him, or to deprive him of them by a trick. In such a state of society not only is violence naturally met by violence, but deceit is apt to be anticipated by deceit. It is most difficult for a man to be honest who doubts the honesty of all about him ; and when the townsman developes a trade among neighbours who recognise only the rule of the strongest, he uses all the weapons with which nature has endowed him to thwart the designs of his adversaries, and only too pro- bably disgraces his calling by some disreputable act of imposture. Such considerations as these might naturally lead us to expect that fraud will be found more prevalent in pro- portion to commerce when commerce is weak intimate oon- and the warlike spirit is strong, and that it will Force"and be less prevalent when the warlike spirit grows weaker — when commerce developes, and is developed by, intellectual improvement. Fraud and force are so nearly akin in the perpetration of crime that the diminution of the latter can hardly fail to be accompanied by the diminution of the former. It is but a natural correlation of social exist- ence that when the country gentleman is no better than a brigand, the merchant is no better than a smuggler, and 264 WANT OF PATRIOTISM [chap. iv. the tradesman no better than a cheat. It is no less a correlation of national growth that, when the land-holder has become more refined through the arts and the cul- ture which have their birth-place in the towns, the townsmen themselves are gainers in an equal degree, and give up dishonesty to as great an extent as the land- holders abandon brute force. No class has yet been able to enjoy a monopoly of honesty, nor has any nation yet been able to dispense with punishments for fraud. Complaints have been made in every generation that it is more depraved than its predecessors. But we need only consult our Public Records to assure ourselves beyond doubt, rtot only that crimes of violence have greatly decreased, but that the very meannesses, deceptions, and crimes against property, which we are apt to la- ment, are our inheritance from a less civilised age, and have decreased with the growth of wealth and of knowledge. Reference has already been made to the petty thefts and rogueries, to the false weights, false measures, and various arts by which the London tradesmen of the four- teenth century ^defrauded their patrons or the rustics who brought goods to market ; and it is unnecessary to dilate further on the small details of such a subject. But the class corresponding to our modern merchants re- sorted to practices which can no more be justified than those of the little mediaeval shop-keeper. True patriotism was not to be found in an age when 'the country' meant no more than the neighbourhood in Treachery of which a man Hved, and in which the guilty had and knights, good reason to hope that they would be de- clared innocent by jurors of their guild. It is, therefore, not surprising that English merchants were in the habit CHAP. IV.] IN KNIGHTS AND MERCHANTS. 265 of supplying nations at war against England with pro- visions bought at English fairs, and weapons wrought by English hands. When England was at war with France, La Rochelle was supplied with food by English traitors ; when England was at war with Scodand, the Scottish camp was fed from English markets, and English soldiers fell by English arrows shot from English bows by Scot- tish arms. The knight was little behind the trader in treachery, and a 'chivaler' who held the office of the King's Arrayer of Archers levied a sum in excess of that which was required for the due execution of his office, and appropriated the whole to his own use. The first thought of the exporter was how he could escape payment of the duty ; the first thought of the importer how he could introduce base money „ ^ J Evasion of from abroad, and put it into circulation in Eng- '^""^^■ land. Upon the rolls may be seen commission after com- mission to enquire concerning merchants who had fraudu- lently laden their ships and sailed without either paying the sum claimed on behalf of the king, or rendering any account. The offence, as is commonly added in the records, was one of daily occurrence. It was perpetrated in various ways — sometimes, perhaps, by a well-laid scheme for eluding the vigilance of the officers, sometimes by a false declaration that the goods were to be conveyed from one English port to another — most frequently, in all proba- bility, by collusion with the collectors of the customs. The importation of false coin was also one of the commonest branches of the merchant's trade, and com- missions were sent into the various counties for importation the purpose of discovering who were the offen- °^ ^'^'^^ '^°'"' ders. The exportation of sterling English coin was contrary to law ; but the practice of the mediaeval traders was to 266 IMPORTATION AND MANUFACTURE [chap. iv. •exchange it with foreign dealers for money which was either of light weight, or of base metal, and to take the difference of value as their profit. The consequence was a general want of confidence In the currency. But for this the king and his advisers were not less responsible than the dishonest merchants. It had long been a common expedient, when the crown was in want of funds, to debase the coinage of the authorised mints, and so to reap a temporary advantage at the expense of the public. The only excuse was that finance had never been made a study, and was but little understood. The great lesson to be learnt from these proceedings, when compared with the practice and principles of modern times, is that en- lightenment, even if acting in no other way, has the effect of diminishing crime, both by adding to the facility with which it can be detected, and by showing that an ill example set by the governing powers fails to attain the desired object — except, perhaps, for a moment — and greatly retards the progress of civilisation. It may seem strange to those who associate the meanest crimes with periods of the greatest refinement, English but it is nevertheless true, that in this age of manufacturers , , . , of false coin, barbarism there were native manufacturers of false coin who competed successfully with the importers from abroad. At Aylesbury, according to the record of a single Gaol Delivery, one person accused of false coining died in prison, and another was brought to trial for the same offence, and for having the instruments of a coiner in his possession. At Scarborough a man and his wife, with an assistant, had a factory on no mean scale, and made not only false money, but false plate. The metals which they used were copper, brass, and quicksilver. With these they counterfeited bo"th silver and gold, and CHAP. IV.] OF BASE COIN. . 267 apparently supplied other coiners with the materials for deception. In London a coiner was sent to the Tower to await his trial for an offence which in those days was held to be treason ; and there are numerous other in- stances in which pei'sons were accused of having false coin in their possession, though not of having imported it. The great quantity of base coin in circulation not only inflicted great hardships on those who incurred loss by accepting it in payment, but inevitably caused ^^^^ ^^^^ ^^ false accusations to be brought against many ^Xthe"^ who had become innocently possessed of it. '=°'"^s'=- The king's officers were always ready to make a charge when they had not received a bribe, and, no doubt, equally ready to conceal a crime when they were suffi- ciently paid. At Kingston-on-Hull the Examiner of the port caused two men to be apprehended for having some of the base money known as Lushboroughs. One of the prisoners alleged that he had borrowed fifteen shillings from the other, had added them to forty-five shillings of his own, and trafficked in Hull with the whole — a sum equal perhaps to sixty pounds of modern cur- rency. Upon examination it was proved that the coins were Lushboroughs to the extent of a twelfth part. The Lushborough money was sent into the Court of King's Bench for inspection, and the Hull examiner retained the good coin in his own hands. The borrower pleaded, with perhaps unconscious sarcasm, that he was a layman, ignorant of letters, that he had never crossed the sea in his life, and that he did not import the base money. His fellow-prisoner admitted the loan, and declared that he received the coin as the price of some wool, and that he also had not imported it. The jury acquitted both, and the terms of the verdict 'showed plainly the motive of the 268 MISDEEDS AT THE MINTS. [chap. iv. accusation. It was found that the examiner had appro- priated all the good money — more than eleven-twelfths of the whole sum seized. He was proclaimed in the usual course, failed to appear, and was in the end declared an outlaw. This is no exceptional case, but simply an illustration of the causes which produced the universal dissatisfaction Dishonesty at '^'^'^ ' the kiug's ministcrs.' There was no pub- the Mints, jj^, department of which the officers were not hated ; but all those who were in any way connected with the mints, having perhaps exceptional temptations, had from time immemorial been notoriously depraved. In the reigns before the Conquest the moneyers were in the habit of making base coin for their own benefit ; and they had continued the same practice afterwards. When not employed by the crown, they probably carried the traditions of their craft into private life, and were, no doubt, the instructors of false coiners, as well as false coiners themselves. In the year before the Black Death, the records do not furnish one instance of detected falsifi- cation in any of the authorised mints, but the tone of morals which still prevailed there is sufficiently illustrated by a complaint of some Lombard merchants. They had delivered to a master of a mint a considerable quantity of silver, which he was bound, in accordance with a re- cognised custom, to coin and re-deliver to them in the form of English money. They soon discovered, how- ever, that it was no easy matter to obtain their due from a government official. Their silver was gone, but they applied in vain fof coin or for satisfaction of any kind ; and the last that appears of the matter is a commission to enquire into the circumstances. The jury was to consist partly of foreigners and partly of citizens of London — a. CHAP. IV.] FALSE PERSONATION. 269 favour granted by the king; and it may be reasonably believed that the verdict was in accordance with the in- fluence and wealth of the parties. Closely connected with crimes against the Mint was the very common offence of counterfeiting seals, which was usually accompanied by that of forging let- Forgery : ters or official documents. At Bedford, a man, sedsf false was accused of habitually imitating the letters p''"^"''"- and seals of the good men of the neighbourhood for the purpose of obtaining money by false pretences. At Aylesbury one was accused of fabricating writings which represented that he was employed in the management of the studs of the king and queen, and could make certain demands in their names. In the commissions, only too frequent, to enquire concerning oppressions, extortions, and felonies committed in purveyance for the households of the king, queen, royal family, and magnates, the false personation of purveyors is the subject of a special clause, and was, beyond all doubt, a very common prac- tice. It may be illustrated by the following case. One Adam Plummer presented himself on Whit-Sunday at Cranford. His dress was rich with silk and fur, and he displayed a trencher-knife with silvered handle. By his appearance and credentials he succeeded for a time in persuading the people of the village that he was William le Moyne, Constable of Rochester Castle, and a kinsman of the Lord Chancellor, who had a right to purveyance. He began to make purchases at purveyors' price, hired stabling for eight horses, and some meadow land near the town — all, as he said, under the Chancellor's authority — and paid only the God's penny, which in those days was supposed to make a contract binding. His movements, however, excited suspicion, and a messenger was sent to 2 70 FORGED LEGAL DOCUMENTS. [chap. iv. the Chancellor, who at once denounced the self-styled purveyor as an impostor and directed a writ to the Sheriff of Middlesex for his arrest. The usual scene of violence followed. The pretender resisted the attempts to take him and maintained a' running fight with the villagers who pursued him with bows and arrows. At last he was wounded in the side, captured, and brought to trial ; but, with the common good fortune which attended criminals in his time, he escaped punishment by means of a techni- cal flaw in his arraignment, and was dismissed upon finding sureties for his good behaviour. Forgery and imposture of a similar kind aided in bringing every branch of the administration into disre- Forged writs pute. The Bishop of Exeter complained that cotrTso™'*" he was the victim of a system of fraud by which other inhabitants of Devonshire had also suffered great damage. A trespass real or imaginary was made the subject of a writ forged with some skill and used with more audacity. Counterfeit seals were attached to the counterfeit writs, which some of the gang of con- spirators had sufficient address to present to the Justices of either Bench as being returned into court by the sheriff with his endorsement. The persons against whom these sham legal proceedings were instituted, had no notice, and, as a matter of course, made no appearance. The false returns produced before the judges were evi- dence that the defendants had been summoned to appear and had failed ; judgment went by default, and a real writ to carry it into execution issued to the real sheriff of the county. The sufferer by the scheme was therefore first made aware of it by the sheriff's officers coming to take possession of his lands and goods on behalf of the schemers. CHAP. IV. J FORGERIES BY BRIGANDS. 271 Here, as elsewhere, it is difficult to distinguish between a knightly desire to appropriate land and the brigand's war against society in general. Those gangs Forgery, used 1 • 1 1 • -1 • as an aid to whose exploits are told in song, with praises of brigandage, their audacity and generosity, resorted to all, and more than all, the mean arts which are practised in more civilised times. A band of robbers in Suffolk seems to have been equally skilful in the use of brute force and threats, in smug- gling wool out of port after it had been stolen, in importing bad money, in forging documents, and in counterfeiting seals. Sometimes they would present themselves at a house and assure the owner that unless he at once paid a certain sum he would be indicted on several counts at the next visitation of the justices. Sometimes they would adopt the shorter method of beating the householder until he paid as much money as they demanded. Sometimes they would appear in church on Sunday, make a sudden attack, and exact a heavy ransom as the price of life ; and what they did on Sunday in church, they did on week-days in the market-place. One day a chaplain, who was a mem- ber of their body, disguises himself at the instigation of the others, as a merchant of Ghent, who was commonly employed by Philippa, the king's consort. He exhibits what appears to be her seal, but is in fact a counterfeit, and demands a large sum of money from her bailiff The first attempt is unsuccessful as the seal is not thought a sufficient warrant. The chaplain returns soon afterwards with a forged letter in which the queen apparently asks for a still larger sum. This device also fails, and the chaplain again retires. After a sufBcient interval of time, another brigand appears as a sheriff's officer, and pro- duces a writ directed to the Sheriff of Suffolk under the King's Secret Seal to distrain the goods and chattels of 272 FORGERY OF PARDONS. [chap. iv. the bailiff for the required sum on behalf of the merchant of Ghent. He also shows a receipt for the money, signed by the queen, which is of course, like the writ and the seal, the work of a confederate. The bailiff hesi- tates ; the brigand, in his capacity of sheriff's officer, tenders his advice, and again calls attention to the receipt. In the end the bailiff satisfies the demand, and receives the forged receipt in exchange for his coin. Conviction in such a case as this, did not always lead to punishment, even though the king might refuse his Forged Par- pardou. The man who would forge the queen's ^°'^' receipt, would not hesitate to forge a transcript of the King's Letters Patent. A case appears on one of the rolls of the year 1348 in which common report attributed to one William Rydout, the practice of counter- feiting various royal letters. He was apprehended, and on him was found what purported to be a copy of a general pardon of homicides and felonies granted to him by the king. The seal, however, had been torn off, and it seems to have been held that the forgery was incomplete unless it could be shown that the seal had been counterfeited. Neither counterfeit seals nor instruments for making them were discovered in the possession of the prisoner. The finding of the jury was, therefore, that the offence of forging letters patent had not been proved. The accused was allowed to go at large on finding sureties for his future behaviour, but -his goods and chattels were attached until his character could be cleared. Such looseness in the administration of justice, which has yet to be further considered, was, no doubt, at once a cause and an effect of the prevailing depravity. The extent, however, to which forgery prevailed, at a time when there were but few educated persons in the CHAP. IV.] CORRUPTION AT THE EXCHEQUER. 273 kingdom, cannot be estimated from the comparatively- unimportant instances which have already been detailed. I n the same year in which the rolls tell of those Forgery of . . Exchequer cases, there appears a commission to the Lord biiis. Treasurer, the Lord Chancellor, the Seneschal or Steward of the Chamber, and others, to enquire concerning a wholesale system of fraud by which, to use the words of the document, grave damage had been caused to the Exchequer, and manifest suffering and impoverishment to the people. Numerous payments and allowances, all of large sums, had been made on the faith of bonds to which had been attached counterfeits of the Great Seal, on the faith of forged bills, and sometimes even without the semblance of a warrant in any form whatever. The whole department was evidently in a state of the greatest corruption — rotten within, and the subject of predatory attacks from without. Other records of the period throw more light upon the matter, and show how powerless were the constituted authorities to apply a sufficient remedy, even if' a remedy was honestly desired. Certain mer- chants had bound themselves to return into the Exche- quer on a fixed day a number of bills which had issued from the Office of the Wardrobe, so that the king might be freed from, the burden of debts of long standing. They had of course received, or were to receive, an equivalent in one form or other for the responsibility which they had thus incurred. But when the time came round they prayed for delay on the ground that forgery had been detected in many bills, and that they were afraid of presenting false instead of real documents. The request was not considered unreasonable, and a writ was sent to the Treasurer and Barons of the Exchequer, instructing them that a respite had been granted to the merchants VOL. I. T 274 FORGERY OF EXCHEQUER BILLS. [chap. iv. for three years — though of course the favour was not accorded until arrangements had been made to pay for it. The manner in which the forged bills were used, and the magnitude of the evil are illustrated by the following Mode of case, which was brought before the King in raising money i • i i upon forged Couucil. Nicholas Boylyel complamed that Exchequer Bius. Walter Yarmouth, one of the kings mmisters (or, as we should now say, an officer of one of the public departments), brought him a bill purporting to be sealed with the seal of the King's Wardrober, and showing that the king owed 312/. to a certain lord, named John Beau- mond. Upon this security Yarmouth borrowed ten pounds, leaving the document in pledge. Another day, he produced three similar bills, similarly sealed, by which it appeared that Godekyn De la Rule, a merchant, was the king's creditor for more than 1000/., and upon these he obtained an advance of 31/. He returned time after time, each time with bills for a larger amount, and suc- ceeded every time in effecting a loan. His last exploit was to raise fifty-two pounds upon three bills representing 2,400/. owed by the king to- De la Rule. After this the forgery was confessed by Yarmouth, whose sentence was imprisonment for life. It is worthy of remark that the rolls are full of instances in which hanging was the punishment awarded to thefts of small amount, that the bills forged by this government official amounted to no less than six thousand and eighteen pounds of the money of the period, and that according to some estimates the sum must have been equivalent to more than a hundred thousand pounds df modern currency. An account of the forgeries for which the dark ages were most remarkable would be incomplete without some reference to those forgeries by members of reli- CHAP. IV.] CHARTERS FORGED IN MONASTERIES. 275 gious houses, which have caused innumerable spurious charters or deeds of grant to be handed down to posterity. Though the crime was very common, both be- Forgeries of fore the Conquest and after, it is not easy to Reit^ouV" discover many instances of conviction. Abbots and bishops had usually sufficient interest to keep accusa- tions out of court, or, like the famous William of Wyke- ham. Bishop of Winchester, to obtain a general pardon, expressly framed in such terms as to cover all ' rasings of records.' A case, however, brought to light a little after the time now under consideration, shows one of the methods by which authority was given to false documents. A dispute arose between the abbot of Bruerne and the abbot of Cirencester, respecting the right to certain land. There was in existence a charter, by which Richard I. granted to a former abbot of Bruerne and his monks, various lands and liberties in various parts of England, but by which it was not possible to establish the claim against the rival house at Ciren- cester. It occurred to some one at Bruerne that if the name of an unimportant place could be erased, and the name of the coveted territory could be inserted in- stead, the charter would appear conclusive evidence in favour of his monastery. The device was carried into execution ; ' Fish-hide ' disappeared, and ' East-leach ' was substituted. It was not, however, thought prudent to exhibit in a court of law a document which had been thus ingeniously manipulated. The charter was presented for ' confirmation,' which was, perhaps, granted as a matter of routine, upon payment of a fee, but more probably by collusion between the monks and a clerk of the chancery. The official ' confirmation,' with which it was not neces- sary to tamper, was on the day of trial placed before the 276 A FORGED CHARTER CONFIRMED. [chap. iv. judges in the Court of King's Bench ; it was a genuine document and on the face of it sufficient to decide the case. The fraud was, however, detected — possibly because the other parties to the suit were not unfamiHar with the contrivance — and the Abbot of Bruerne was summoned befoi"e the King and Council. He appeared, and declared that a monk of his house had made the erasure, and taken the charter for confirmation entirely without his knowledge, but admitted that he could show no cause why the document and all confirmations of it should not be annulled. He was required to produce them on a certain day, when he again appeared and made the astounding statement that he had never seen the charter which had been falsified, that it had been taken away from the house by the monk whom he had named, who could not be found, and who had it in his possession, if indeed it had ever existed. With this the Court seems to have been satisfied, though, of course, the final con- firmation of the charter was cancelled. Attempts to deceive the unlettered by those who were able to read and write seem, however, to have been the Forgeries natural growth of an age in which a little edu- committed . ' , by Sheriffs, catiou made almost as great a difference between Englishman and Englishman as now exists betwen sa- vage and citizen. Forgery, trickery, and corruption in every form are the offspring of a period in which ignorance rendered detection difficult, and in which violence was their most ready ally. Not only was it a common offence to counterfeit a pardon, but frauds were perpetrated by government officials for the purpose of saving an offender from trial. An unfortunate widow instituted a prosecu- tion against the murderers of her husband. In accor- dance with the forms of those days, the Clerk of the CHAP. IV.] CRIMINALS SCREENED BY SHERIFFS. 277 Crown directed a writ to the Sheriff of Norfolk, in which county the crime was perpetrated, and instructed him to apprehend the accused, who were eight in number. One of them was named Erode ; no attempt was made to capture him, and when the writ was returned his name was not to be found there. Upon inspection it was ascertained that while the writ was in the Sheriff's pos- session an erasure had been made, and ' Erode ' had been converted into ' Crode ' — so that there was in effect no warrant for the arrest of the person who was at the head of the list of the appealed. A very similar case occurred in the same year in Hampshire. In this there was no question of forgery, but it illustrates the difficulty of obtaining Partiality and r ^•rr -i i • r general cor- lustice tor any wrong — a dirticultv which we ruptionof . . Sheriffs and happily cannot realise to our modern imagina- otherOfficers. tions without taking into consideration some very remark- able details. Another widow adopted the usual course of proceeding by appeal against the murderers of her husband. One of them was taken, but when the time for his trial came round, the Sheriff certified that he was in ill health, and could not travel without danger of dying on the road. Another day was fixed, and again the prisoner was not produced and the same excuse was made. The Court, however, decided that the Sheriff was not justified in his conduct, that his return was insufficient, and that he had acted with the object of showing favour to the accused. Like the Sheriff of Norfolk, he suffered no greater punishment than a fine, which in those days of corruption he could, no doubt, easily make good. The conduct of the Sheriffs in the administration of justice was at that time neither worse nor better than that of their subordinates, or even of the superior judges. 273 REFUSAL OF A SHERIFF TO ACT. [dHAP. iv. The Sheriff of Hampshire was impHcated in another affair in which the Royal authority was quietly set at defiance. A trespass had been committed ; the offender had been sentenced in the Court of King's Bench to pay a certain sum, and the Sheriff had been instructed to execute judgment. Upon receipt of the writ, he deliber- ately refused to act. The Coroners of the county were then commanded to bring him into Court to answer for his contempt. Their reply was that the Sheriff was residing within the liberty of Queen Philippa, and that the duty of taking him devolved upon the bailiff of the liberty, to whom they had given the necessary instructions, but who had returned no answer. The Court held that this statement was insufficient, that the coroners were screening the Sheriff, as the Sheriff had screened the trespasser, and that they must be held responsible. In the mean time, however, the plaintiff in the original suit remained as completely withput redress as though no verdict had been obtained. A device commonly adopted by the Sheriffs, for the purpose of aiding the guilty or injuring the innocent, was Juries packed ^o empanel a jury of which the members were by shei iffs . {^j^q^j^ ]-,y j^j^ ^q favour the side favoured by himself. The writ in which he was instructed to summon the jurors contained also a caution that they should not be in any way connected with parties interested in the case. But he had power to name whom he pleased, and his partiality could rarely be detected unless his nomina- tion included persons obviously disqualified from serving according to law. Sometimes, if he could not attain his object otherwise, he would openly disregard the law, and trust to his influence to save him from punishment; But his misdeeds in this respect were not unfrequently brought CHAP. iv.J JURIES PACKED BY SHERIFFS. 279 to light. It was necessary, at this time, that jurors should be chosen in the district in which a crime was committed or in which a dispute arose ; and it must be remembered that they were still practically witnesses of the facts, if not the only witnesses, though they gave a verdict. In spite of this, the Sheriff of Sussex took upon himself to return a panel of jurors, to try a case of homicide, not one of whom was qualified by his place of abode to sit. The defect was discovered, and the panel quashed. The Sheriff of Suffolk effected the same purpose in a manner, if pos- sible, still more unjustifiable. He placed a number of outlaws upon a jury, which convicted an Ipswich man of trespass and other offences. The sufferer endured a long imprisonment in the Marshalsea Prison before he could obtain so much redress as an enquiry into the circum- stances. In the end, however, the illegality of the pro- ceedings was made manifest, and they were annulled. Sometimes it is expressly stated that an accused per- son is too powerful for a trial in his own county to be impartial, and provision is made accordingly for ^ . a trial in London. But pressure could as readily jjf Kin^'^"" be brought to bear upon the Judges and their '^™'^''' officers in London as elsewhere. The Chief Clerk of the King's Bench had some connection with the Monastery of St. Paul's. He was one day within the walls of that religious house, when a Lancashire gentleman, accom- panied by a servant, presented himself in great wrath. According to this gentleman's statement, the Chief Clerk had received a bribe, or a promise, of four marks, to delay proceedings in a pending action. This the complainant alleged to be to the advantage of his adversary, and, placing his hand on his knife, gave the Clerk a significant warning not to repeat the offence. His example was 28o FEES TAKEN FROM BOTH SIDES [chap. iv. followed by his servant, and the two retired with threaten- ing gestures. This mode of dealing with an official was of course a contempt of court, and was punished by a fine ; but it does not appear that the charge brought against the Chief Clerk was unfounded. There was, indeed, a commission about the same time to hold an enquiry concerning various deceptions and falsifications for which the King's Bench had become notorious, and which had caused no small scandal at Westminster and ' damage to the people.' Nothing, however, can better illustrate the manner in which justice was sought, and the estimation in which Forgery b courts of justice were held, than the audacity taWnglees ^'^^ which money was taken from both sides in par1ies°toa ^ suit between the Abbot of Pershore and the Abbot of Westminster. The matter in dispute was the burden of repairing and maintaining Pershore Bridge. One Geoffrey Aston declared himself ' of the counsel ' of the Abbot of Pershore, and received from Adam le Clerk, on the part of the Abbot, a fee to obtain a Commission of Enquiry, and further to act against the Abbot of Westminster until the house at Pershore was exonerated. After some preliminary investigations, the cause was brought into the Court of King's Bench, to which the Sheriff of Worcestershire returned a panel of jurors. The return, however, was, either through collusion or in accordance with the ordinary laxity of proceeding, directed to Aston, to be delivered by him in the presence of the Chief Justice and other Judges of the Court Adam le Clerk had come up to Westminster to act as might seem best for the Abbot of Pershore ; and it was agreed between him and Aston that it would be best to destroy the panel furnished by the sheriff, and to sub- CHAP. IV.] £Y COUNSEL IN A CAUSE. 281 stitute one of their own making. The sheriff's seal was accordingly taken off, the despatch opened, the names of suborned jurors put in the place of those named in the genuine panel, and a counterfeit seal attached to the forged document, which was then delivered into court. No sooner was this done than Aston pretended to betray his former clients, went to the Abbot of Westminster, and offered himself as counsel against the Abbot of Pershore. He was accepted, and bound himself by oath to strive in every way for the success of his new client. He received a larger fee than had been given on the other side, and a still greater sum on the day of trial. But when the cause was called, he took the part of the Abbot of Pershore, which he had good reason to know would be favoured by the jury. In the end, he was him- self brought to trial for having been ' ambidexterous,' and convicted, but incurred no greater punishment than a fine. His accomplice in the forgery suffered no heavier penalty, and both remained at large to exercise their ingenuity still further. The ecclesiastical courts appear to have been the scenes of similar iniquities. A grand jury found that three men in Holy Orders entered into a con- Deceptions T , T^ , practised in spiracy agamst one John iLxeter, who was theEccie- residing in Northamptonshire. They persuaded courts. a man to assist them by going in their company into the City of London, personating John Exeter, and accepting in his name a summons from the Summoning Officer of the Court of the Archdeacon. The officer thus became a witness of due service, and process was continued against Exeter, who, being in complete ignorance, made no appearance, and was consequently excommunicated. A day was fixed for the trial of the conspirators, who 282 CORRUPTION OF JUDGES. [chap. iv. seem to have possessed considerable influence, or the wealth which could be converted into influence. When the time came for hearing, the Justices simply ordered proceedings to be stayed. If the judges were not guilty of corruption in this particular case, there is at least no doubt that corruption Bribery ^^^ ^^ general among them as among the j™ig"f."the counsel from whom they were selected, and of'Enlrand^ among the subordinate officials of the courts. Not only ■ had extortion been the theme of innumerable documents enrolled on the public records for generations ; not only had the judges been dismissed in a body for their misdeeds ; not only were the bribes which they were in the habit of receiving from both parties to a suit the subject of popular songs, but at the very time now under consideration the Chief Justice of England was \yilliam Thorpe , who was convicted two years later of receiving gifts from parties appearing before him. According to the Ordinance for the Justices, framed two years earlier, every judge was, upon his appointment, compelled to make oath that he would not take either robe or fee, for the execution of his office, from any one but the king ; and an infringement of this solemn promise, placed his lands, and goods, and life at the king's mercy. Five separate instances in which money had been accepted were adduced against Thorpe, and in none of them did he deny the fact. The sentence pronounced against him was that he should be hanged, and forfeit all his lands and goods. The king, however, stayed execu- tion, commanded that Thorpe should be imprisoned in the Tower, and, after a delay of no more than a twelve- month, granted a pardon, and restored a portion, if not all, of the forfeited possessions. CHAP, IV.] CORRUPTION REGABDED AS VENIAL. 283 It is but too evident, from this and many other similar cases, that the offence which the Chief Justice confessed was not regarded as a very great crime. An oath had been broken in which the king had a special interest, and this seems to have been thought of far more importance than the character gf the Bench or the welfare of the nation. A pardon, in those days, apparently cleansed a man from the stain of every mean action, and rendered him fit for the society of the most noble among barons or the most chivalrous among knights. It is necessary to bear these facts well in mind in attempting to estimate the culpability of such a Chancellor as Bacon, and the blessings which we enjoy in the present administration of the law. Enough has now been said to show how wide-spread was the corruption of the period, and to explain the violence and lawlessness which appear at first 111 effects of sight irreconcileable with any firmly-established examples. legal system. It has been sufficiently proved that the age of chivalry was an age of chicane, and fraud, and trickery, which were not least conspicuous among the knightly classes. It has been demonstrated that in town and country alike all the officers of the law, from the highest to the lowest, were open to bribery. It is not, therefore, difficult to understand how a legal organisation from which our own has been developed was wholly without respect, and utterly powerless to cope with offenders. It ceases to be wonderful that the barbarism of the past was able to assert itself in private wars and forcible seizures of land at a time when the Courts of King's Bench, Common Pleas, and Exchequer were all in existence, when the judges went their circuits as in our own time, and when legal cases involving difficult points 284 S YMF A THY OF JURORS WITH CRIMINALS, [chap. iv. were reported year by year for the use of the legal pro- fession. The men appointed to carry out an improving judicial system were infected by the ancient traditions, and brought the laws into the disrepute which was justly incurred by themselves. Criminals of every kind not unnaturally believed that they would be protected in the perpetration of crime, or that they would at least secure impunity after the deed. It must have been for this reason that they undertook adventures which could not be brought to an end in a day, and which would have been perfectly impossible had the local authorities acted with vigour or even acted at all. Not once nor twice, but time after time it is recited, in the commissions of enquiry, that after a close had been broken and a house attacked, the timber was cut down, the grass mown and made into hay, the corn reaped, and the whole spoil carried off. The knights and clerks who were implicated in these deeds mustered, perhaps, some- times a force too powerful to be successfully opposed by any legal authority ; but at other times, when the attack- ing party was less numerous, it is not difficult to perceive the connivance of a sheriff or his subordinates. It is no injustice to the man who would pack a jury or rase a writ to suppose that he would shut his eyes and close his ears when a knight, who happened to be his friend, was robbing a knight who happened to be his enemy. One of the greatest encouragements to criminals was thus the great probability that they would escape all Reluctance of punishment. Apart from the corruption or jurors to con- , p._.^ i*iii Vict. partiality of officials which delayed a trial or rendered it impossible, a jury, even when not fraudulently empanelled, was usually inclined to take the part of per- sons accused. The lament in the Statute of Winchester CHAP. IV.] THE INQUEST OF FAME. 285 that jurors could not be induced to find true verdicts against robbers or any breakers of the peace is fully jus- tified by the rolls of a later date. Except when the culprits were ' clerks, ' who were at this time extremely unpopular, acquittal was the rule and conviction the ex- ception. A man of influence could exert his influence to save himself ; a man of no influence had the sympathy of men who, if not concerned in the offence which they were summoned to try, could hardly have been guiltless of some similar act of lawlessness. If a man was taken with property in his possession of which he could not give a satisfactory account, it was usual to defer his trial, after he had been brought into court, until his fate could be decided by an Inquest of Fame. The meaning of this was that the general character of the accused, as found by a jury, was accepted as an indication of the guilt or innocence of the prisoner. The ancient practice of com- purgation may, perhaps, have suggested this method of determining the issue, and the result wa§ hardly more satisfactory than the result of the ancient practice. The ' country ' which would not convict on a particular charge, would not, as a rule, declare a thief to be of ill repute, and the ordinary verdict was that the accused was of good fame. Among other facilities for escape was the ease with which a law breaker could find shelter for himself and storage for his spoil. The Common Receiver common Re- is by no means a creation of our great modern feionra°nd cities, but has descended to Us from the days ^°° ^' when Europe was in a state of brigandage, and when the guilds assisted an accused brother to obtain an acquittal. Men and women are thus described in numerous cases recorded in the rolls, and were the fitting associates of the 286 RECEIVERS AND APPROVERS. [chap. iv. classes described as common breakers of the peace, com- mon thieves or robbers, and common malefactors. There is now a wider separation between those who live by- crime and those who live by honest means. But the difference has been caused not so much by the addition of crime to the list of skilled professions as by the increase in the number of industrial callings. New outlets are thus provided for the energy and ingenuity of those who would, in former times, have joined the gang of a robber- knight, earned a livelihood by forging writs and charters, or been content with stealing a sheep and carrying it home to be hidden by a wife or a mistress. It happened by no means unfrequently that members of a band of depredators betrayed their accomplices after they had been apprehended. This mig-ht natu- Approvers : •' ^ ^ c> fafi'^-^thJrea- ^^^^Y ^ave been expected in an age in which sons for it. cQunsel somctimes accepted fees from both par- ties to a suit, and the judges were notoriously corrupt. There was, however, little danger to any criminal from this source. The spirit of partisanship, if it was not strong enough to prevent a thief from becoming an approver, was at least strong enough to render his death almost a certainty after he had made his accusation. The great number of these approvers and their almost invariable fate present a curious illustration of the age. If jurors were always reluctant to convict, they were doubly reluctant when, as the legal phrase ran, an approver offered himself The charges brought by these men were, no doubt, very often false and prompted by malice. There was many an Gates before Titus, though their opportunities may not have been as great, or their schemes may not have been as well made known to us as his. But jurors would, in those days, care little whether an approver spoke truth CHAP. IV.] APPROVERS DESPISED AND HATED. 287 or falsehood. If any virtue was cultivated, any duty considered sacred, it was that of fidelity to a kinsman, a leader, or a comrade. Thus much of good, though little more, there was in the old family-tie, the old land-tie and the old guild-tie. To be untrue to an associate was, therefore, a crime of far deeper dye than robbery or murder ; and the jury, apart from all other considerations, had no eyes for the lesser offence in presence of the greater. Any one who was appealed by an approver, was, for these reasons, as nearly as possible certain of an acquittal ; the approver himself, if he failed, as he nearly always did fail, to obtain a verdict, was sentenced to be hanged. Jurors, too, had probably some suspicion of the man- ner in which men were induced to turn approvers after they had been captured and lodged in gaol. Not Prisoners many years had elapsed since some of the deeds ture to be- come ap- perpetrated by gaolers in London had been provers. brought to light, and it may be assumed that in such an age gaolers elsewhere were not more humane. A whisper had gone abroad of the horrors of Newgate, which had at length become the subject of a commission of enquiry. There persons accused of minor offences had been thrown into the deepest dungeons with notorious robbers and murderers. All had been threatened and tortured until they consented to do as the keeper of the gaol had bidden them. Sometimes his object was no other than that of the brigands outside his walls — to make his victims pay for mercy ; but not less often it was to force the most atrocious criminals to implicate the innocent in the offences which they had committed. The appeal by an approver was, therefore, on many grounds regarded with abhorrence. It might, indeed, have been supposed that, as 288 DEATH OF APPROVERS IN PRISON, [chap. iv. an inquest was held upon the body of everyone who died in gaol, to decide whether the death had been in the or- dinary course of nature or had been caused by duress, there would have been some restraint upon the cruelty of gaolers. But though there is ample evidence that the law upon this point was enforced there is not less ample evi- dence that death in prison was a remarkably common event. Among all the prisoners none died so frequently as the approvers, who seem, indeed, to have sometimes at least resisted their tormentors until their strength failed them and to have lived only long enough to make their charge. Instances in which ' dead ' is set against the name of an approver are suspiciously common ; and one roll of the year before the Black Death shows that no less than fifty had died in the gaol of York Castle alone. With the alternative before him of being executed according to law or killed by prison discipline, it may ap- pear strange- that anyone should be found to seek safety in a false accusation or in treachery to a friend — especially in an age in which such treachery was regarded as the most unpardonable of sins. The only explanation seems to lie in the fact that, when communication was difficult and news travelled slowly, the fate of informers was not generally known, and in the fact that, although every man was ready to punish as a common enemy one who had shown himself a traitor, few had any real sense of honour, any chivalrous sentiment, which would deter them from attempting to save themselves at the expense of others. When, however, the approver had once made his ac- cusation, he seems to have been oppressed by the magni- conduct of ^^^^ of his offence against the recognised code mawng thdr °f morals, or to have been utterly broken in spirit by the tortures which he had endured. In accusations. CHAP. IV. J APPROVERS AFRAID OF THE BATTLE. 289 those days mere physical courage must have been the most common of virtues, and could not have been want- ing in the habitual criminals whose lives were passed in rapine and bloodshed. Yet the approvers appear but rarely as the actors in the trial by duel which afforded them their best chance of success ; and,- when it was demanded against them, they seem to have lost all confidence in themselves. The following instance, by no means exceptional, may be mentioned in illustration. A man taken on suspicion of having stolen a number of sheep became an approver, and alleged that he had com- mitted the offence with others, of whom he mentioned one by name. The accused declared his innocence, and offered to prove it by his body. The court allowed the wager of battle. It was accepted by the approver who was sent back to prison. But, before the appointed day the approver returned into court, and -withdrew the. charge. His fate might easily have been predicted. He was at once sentenced to death by hanging. - Charges made by approvers were by no means the only kind of accusation discouraged by popular opinion. An attempt had been made, since the Conquest, prosecution to provide a legal substitute for the ancient XSdTy Vf blood-feud. Lawyers of the French and Italian '="'""""■ schools had no sympathy with the barbarous doctrine that the next of kin had a right to blood or money for a slain relative. But they introduced into the class of prosecutions by them designated appeals a form of pro- cedure according to which a widow could prosecute the slayers of her husband, or an heir male the slayers of his ancestor. In the event of a conviction, the king had no power to pardon ; and to this extent the family rights of past ages were respected and the injury done was regarded VOL. I. u 29° THE APPEAL OF DEATH. [chap. iv. as a private wrong. There was usually in such cases a con- current indictment in which the offence was regarded as a public wrong — done, in technical language, against the king's peace. Damages for murder were thus abolished, though damages were still awarded to those who were suc- cessful in an appeal of maihem (or maiming), and restitution of stolen property was obtained by a successful appeal of robbery or larceny. But it was hardly more difficult to se- cure conviction in an appeal instituted by an approver than in an appeal instituted by a bereaved widow. The law- lessness for which the ancient wer-gild was but a cloak was still dearly cherished ; and it was, no doubt, considered a great hardship that an Englishman should not have the privilege of killing a neighbour when he was prepared to make a suitable compensation. In the age of chivalry there was little sympathy for the fatherless and the widow, who learned by bitter experience that to institute a prosecution was only to add new trouble to their be- reavement. The happiest issue of which there was any reasonable hope in any kind of appeal was that the accused would Hardships cscapc Capture and be outlawed for non-appear- f^ured"'!^ ance. This was what most frequently hap- cusers. pened ; and it could have afforded but little satis- faction to the prosecutors. Only a little less often it was found that on the day of trial the accusers did not dare to present themselves. It is, indeed, probable enough that in some appeals of rape and robbery accusations had been falsely made, and that a guilty conscience had a deterrent effect. But this explanation will not apply to the nume- rous instances in which appeals of murder were aban- doned by widows who had lost their husbands. The penalty for this default would not have been lightly CHAP. iv.J THE FATHERLESS AND THE WIDOWS. 291 incurred, for it was that which in the case of a woman corresponded to outlawry in the case of a man. She was waived ; she became, that is to say, a waif — a thing of as Httle consideration in the eye of the law as a stolen chattel thrown away by a thief in his flight. She had legally no dwelling-place save within the walls of a prison. Yet this was commonly the sentence upon a widow who had been imprudent enough to accuse her husband's murderers in the first excitement of her grief. Either the offenders employed such threats that she feared their violence more than the law's cruelty, or the neighbours were so much opposed to the proceeding by appeal that she knew it would be useless to ask for their verdict as jurors. In either case the remedy provided by law was practically useless. If a resolute woman determined to run every risk, and appear in court, a dexterous counsel raised technical objections, by which her patience and resources were ex- hausted — sometimes even before the jurors- were asked to speak. Walter Eye, for instance, a clerk, had to answer Mazeline le Long for the murder of her husband in one appeal, and others had to answer her in another appeal for having committed the crime with the consent and at the instigation of the clerk. Eye was tried first, and ac- quitted on the charge of murder. The widow was com- mitted, and compelled to pay a fine for her release. The appeal against one of the others was then heard, and it was pleaded on his behalf that, as his principal had been acquitted, the accusation against him as an accessary necessarily fell to the ground. The court ruled that this was good law, and the widow was again committed, and again had to pay a fine. Two others failed to appear and were outlawed ; but one of them afterwards came u 2 292 ESCAPES FROM GAOL. [chap. iv. into court, and gave as a reason for his non-appearance that he had been in the army before Calais. He was bailed, and in the end received a pardon. The widow, after all her losses, had no satisfaction, and was burdened with the reflection that all her enemies, except one who died in prison, had both the will and the power to take their revenge for her attempt to punish them. In the corruption which prevailed everywhere, and from which, as has been seen, gaolers were by no means Facilities for exempt, the Criminal who could afford to pay the escape of . criminals. might reasonably hope to escape from prison either before trial or after sentence. Gaol-breaking, as it is termed, is frequently mentioned in the records. The commission to enquire into the state of Newgate naturally suggests a suspicion that gaols were not very frequently broken without the connivance of some one who had authority within them. In the year before the Black Death there was a writ to apprehend the Keeper of the Marshalsea for having fraudulently permitted the escape of a number of prisoners who were in his custody, and who had been convicted of various trespasses. There is reason also to believe that the sheriffs played into the hands of the gaolers — sometimes for the purpose of detaining an innocent person in prison untried, and sometimes for the purpose of giving a favoured prisoner more time to make arrangements for his escape. Again and again it is recorded that a person brought into court for trial was sent back to prison ' for defect of country ' — as it is expressed in the rolls, or, in other words, because there was no jury. It was the duty of the sheriff to summon a sufficient number of jurors, and, though they may some- times have neglected to obey the summons, it is quite consistent with the facts already narrated to suppose that CHAP. IV.] DIFFICULTY OF IDENTIFICATION. 293 the sherifif was willing to incur a fine for the sake of damaging an enemy or gaining time for a friend. Had the administration of justice been less corrupt than it was, criminals would still have had a great ad- vantage in the difficulty which presented itself ^dvanta es when any attempt was made to describe them ^0^ ^^I'm. in a legal document. Below the class of fio'„^''of Tu"''" knights, surnames had not as yet become fixed ; ™-^^^- and it would, perhaps, be hardly correct to say that they were everywhere fixed even in that rank. If a man is known as William Litster of Gateshead, William, his servant, is known as William Williamservant Litster of Gateshead. If a man is known as Robert of theWoghes, Nicholas, his servant, is known as Nicholas Robert- servant of the Woghes. It is evident that in such cases as these the trade or the place of abode is made to serve the purpose of one designation, but that each is so loosely attached as to be moveable at pleasure, and to be appli- cable to the purposes of another designation. The con- sequences of such an imperfect nomenclature are, as might have been expected, most conspicuous in the records which relate to criminal matters. The judges, from this cause, looked upon any alleged pardon with the greatest suspicion ; and there, no doubt, existed a practice of rendering a pardon granted to one person useful to many. Juries, therefore, were continually summoned to decide the identity both of persons accused and of per- sons pardoned. A man who was put on his trial for homicide, as John Parker, alleged that he had received a pardon under the name of John, son of Richard Smyth of Watton ; another, accused with him, as Walter of Lyn- deseye, alleged that he had received a pardon under tbe name of Walter Cosyn of Toynton, in Lyndeseye ; and 294 TRAFFIC IN PARDONS. [chap. iv. in both cases the pardons were allowed. A question arose whether a prisoner described as Robert Stete Tournour of Tenterden had been outlawed or not; it was found that the person outlawed was Robert, son of Alexander Tumour of Thurleigh, and that the prisoner was Robert, son of William Flour of Tenterden. When there was so great an uncertainty as appears in these and very many other cases, it is obvious that there were almost insuperable obstacles to the apprehension of offenders not taken in the act, as it was nearly impossible to describe them correctly in a writ, even though their persons were known. So great, indeed, did the inconve- nience become that in the reign of Henry V. it was thought, necessary to provide a remedy by a Statute, in which it was enacted that the condition in life or occupa- tion and the place of abode should be necessary to a com- plete description of a person in a legal document. Even this, however, was not effectual, and the Writ of Identity of name, which was commonly demanded in the reign of Edward III., was again the subject of a statute in the Reign of Henry VI. Though pardons were regarded with suspicion when produced in answer to a criminal charge, there is no Readiness doubt that they were granted with the utmost pardo^'were facility in an age when- peace was never of long granted. duration. As soon as war was declared, it was the custom to issue a proclamation, in which a general pardon of all homicides and felonies was granted to everyone who would serve for a year at his own cost. The terms were readily accepted, and the king increased his force by a number of men who would perhaps be iiTferior to none in courage, though they might not im- prove the discipline of the army. The rolls accordingly CHAP. IV.] FALSE PERSONATION AT CRECY. 295 abound with instances in which a pardon was alleged for military service, and allowed without dispute. Nor was this the only advantage which a criminal derived from foreign wars. Even when he remained in England, in pursuit of his ordinary occupations, he had only to secure the good ofifices of some one who had influence with the king. An entry would then appear upon the rolls to the effect that, at the special request of some nobleman named, or of divers magnates and others serving with the king in parts beyond the seas, who testified to the innocence of the accused, a pardon had been granted to him. In such words impunity was granted to one of the actors in the outrage in Wiltshire, in which a small army sacked a manor-house, and in which two priors were said to have been among those who committed rape and murder. It is hardly necessary to remark that the repre- sentations by which these pardons were obtained were not always strictly accurate. A curious case of deception, which, from the self-denial and devotion involved, was more venial than many others, was brought to light in the year 1 348. One Walter Mast was indicted for murder, and lodged in Scarborough Gaol. His brother John then joined the king's army, fought at Crecy, and during the whole campaign passed by the name of Walter. This heroic liar then asked for a pardon in the name of Walter Mast, and obtained it in the ordinary course. But as the homicide had been in gaol at the time of the battle, the fraud was too transparent, and John had to confess the deception of which he had been guilty. He threw himself upon the king's mercy, and was released, on finding sureties for his future good conduct and paying a fine. To so great an extent, however, was carried the 296 A MOCK-BURIAL IN 1348. [chap. iv. practice of obtaining pardons on various pretexts that, even in such an age as has been described, it was felt to be a national reproach, and became the subject of many- petitions in parliament. There was no check upon it except the power of individuals to institute an appeal against the wrong-doer, and the law by which the accused, when captured, was detained for a year and a day in prison to await the private action before he was brought to trial upon the indictment. This state of the law some- times had undoubtedly the effect of inflicting a year's imprisonment upon a criminal, or not less probably upon an innocent person ; but in other respects the appeal, as has already been shown, rendered little or no assistance to the cause of justice. Among the crimes for which a pardon was granted in the year 1348, was one which shows how little respect Pardon for a there was for the services of the Church. It fraudulent . - , , , . burial. was convenient to one of the inhabitants of Great Yarmouth, or to his wife, that a report of his death should be spread abroad and believed. The wife devised a scheme, and employed a number of men to carry it into execution. In those days it was not very difficult to find a dead body, nor, when one was required, would there have been much hesitation in hastening the death of the living. A body was found, and represented by the wife to be that of her husband. She had removed to Lynn, where the deception could be more easily effected, and where neither the coroner nor the neighbours would attempt to identify the features of the corpse. No sus- picion was excited at the time, and the body was solemnly buried as that of her husband. The fraud, however, was afterwards detected, and one of the offenders was brought intp court for trial. As frequently happened, there was CHAP. IV.] BENEFIT OF CLERGY. 297 no sufficient jury, and the accused was sent back to prison. Before the hearing of the case he obtained his charter of pardon, and it does not appear that his ac- complices were ever apprehended. The most probable motive for this false burial was the desire to stop pursuit of the person represented to be dead, and to make an end of all accusations brought against him. The device opened one more avenue of escape, in addition to the many which criminals already enjoyed. It leads, however, to a question which will have occurred to the mind of every one who has read the preceding description of the state of England — What in- fluence was exerted by the Church in the midst of this wide-spread depravity ? One of the most common incidents in the courts of criminal jurisdiction was the claim of the accused to have Benefit of Clergy. It must have been notorious Benefit of everywhere that anyone who was entitled to '--'^''sy- this privilege was practically exempt from the ordinary punishment for most of the greater crimes. The effect can hardly have been very edifying to the uneducated laity, who, however great their superstition may have been, had not the slightest respect for the ministers of religion. It was as likely as not that a priest could be made an accomplice in a fraudulent burial ; and if he could not, there would have been no hesitation in deceiving him. Benefit of Clergy was not only one of the advan- tages enjoyed by a particular class of criminals, and an inducement to break the law, but was also a cause of hatred between one class and another. The comparative impunity of clerical offenders, the lawlessness of the whole clerical body, and the unpopu- larity both of monks and of parish priests, are so inex- 298 CRIME AND THE REFORMATION. [chap. iv. tricably interwoven, that it is necessary to bear each in mind in the consideration of the rest. The subject, too, regarded as a whole, has an importance of a far wider Light thrown range than could have been suspected without nai Records the light thrown upon it by the records of great rdigious Criminal proceedings. It is only through the movements of . ,.,., 'iji the four- inner national life which is there revealed that teenth, fif- teenth, and the great religious movements of the fourteenth sixteenth cen- ° ^ turies. fifteenth, and sixteenth centuries can be traced to their sources in the far-off past. It is only there that some of the sentiments which animated the followers of Cranmer can be identified with those which were common throughout the whole country in the days of Wycliffe. It is only there that the need of reform in the Church presents itself at so early a period as a wide-spread con- viction, apart from the tenets of particular preachers^as a conviction expressed in every county, not by elaborate treatises, but by short and significant verdicts, and by deeds not less significant. When Benefit of Clergy was successfully claimed, the accused was handed over to the Ordinary, or, in other Proceedings words, to the Safe keeping of the Bishop of the claim of Pri- diocese, who usually sent a deputy to watch the vilege of ... Clergy. proceedings in court, with power to receive clerks from the secular arm. Sometimes the clerk was given up before trial, for purgation according to the direction of the ordinary ; sometimes a jury was em- panelled to decide a matter of fact which affected the claim ; but most commonly the trial proceeded as in the case of an uneducated layman, and the accused obtained the protection of the Church only as a clerk convict. The judges, indeed, seem to have had the power of ordering a lay jury to give a verdict, even though the prisoner CHAP. IV.] PURGATION OF CLERKS CONVICT. 299 might assert his clergy immediately after he was brought into court. Thus in one case in which a clerk had com- mitted various offences, had robbed his father's house, and had claimed the privilege of his letters, the order of the court was that he should be delivered to the ordinary, but that an inquisition should first be held by the country to determine the truth of the charges, and under what description the ordinary was to receive him. He then became a clerk convict ; and the 'royal authority was so far maintained above that of the Church as to follow him to the Bishop's prison, where, as appears upon the record, he was to be lodged. After this stage of the proceedings the criminal was, according to the canon law, still able to exculpate himself before the Bishop by the ancient method of compurgation. He had but to make oath of his inno- cence, and to find others who would swear, as a matter of form, that they believed him, and he became again a free man, wholly purged from the taint of crime. This, it may well be believed, was not desired by the judges when they drew a distinction between cases which might be tried in the first instance before the ordinary, and cases in which a verdict must first be pronounced by a jury. But this, there is no doubt, was the final issue, even when a verdict of guilty had been pronounced ; and against such a" miscarriage of justice an attempt was made to provide a remedy by the introduction of a clause into the form of delivery, according to which the convict delivered was expressly deprived of purgation. The instances, however, are rare in which this precaution was adopted ; and thus privilege of clergy was practically, for one class, an escape (secured by means of an oath and a fee) from every punishment for almost every felony. The clerk convict, indeed, was in a far better condition 300 QUALIFICATION REQUIRED [chap. iv. than the ordinary layman who had been acquitted ; foi", by a Statute of the twenty-fifth year of Edward III., which, in this respect, probably declared the previous state of the law, he could not be afterwards arraigned for any felony committed before his conviction. When purged of the offences of which he had been found guilty, he was in the condition of a new man — blameless in the eyes of Justice, of good character from his infancy upwards. At this early period, however, as afterwards, the definition of a clerk must have been a matter of some The class to Uncertainty. It was held by one judge as late pri^iegeVas as the year 1352 that the tonsure was necessary for a successful assertion of the claim to clergy, even though no objection to the claim was raised by the ordinary. But on the other hand, it is evident that this was not the common interpretation of the law, and that the qualification of being able to read must, in the usual practice, have been held sufficient. If not already, it was very soon afterwards a part of the duty of the judges to enquire whether gaolers had aided prisoners to gain a knowledge of letters, and to punish them when detected in the offence. Even at the beginning of the reign of Edward I., when men in orders could not legally marry, a statute was passed by which felons were deprived . of their clergy if they had committed bigamy in addition to their other offences. Bigamy, in the clerical sense, meant marriage with a widow, or with two maidens in succession — with one after the death of the other. The act could not apply to matrimony committed after orders had been taken, and could hardly have been intended to meet cases so exceptional as those of married men who had forsaken their wives for the CHAP. IV.] FOR BENEFIT OF CLERGY. 301 sake of religion. The privilege had even in those days, there is reason to believe, been somewhat extended. The truth seems to be that the Ordinary, if he pleased, claimed as ' clerks ' all who had advanced so far in the preparation for orders as to learn the art of reading. Many tenants of the church lands, no doubt, availed themselves of the opportunity to learn letters at the nearest monastery, or, if they were in favour with the superior, were taught to read in prison and claimed at the trial. It was not until a later period that the ordinary could be compelled by the judges to accept a knowledge of letters as a proof of clerk-hood. After this change was effected in the law, the classes arrayed against each other were the educated with privilege against the un- educated without privilege ; before it, the unprivileged laymen were arrayed against the privileged clergy who practically extended their protection as far as they wished and no farther. The doctrine, that a man who had been married might have privilege of clergy if he could read, and if the ordinary pleased, not only preserved a clerk ^he advan- convict from punishment in his own person, but by^th/prwf.'^ secured for him the restitution of his goods ^^^' after purgation, and operated to the benefit of his heir, who in the case of an ordinary lay conviction would have been disinherited. There is a curious case on record which shows that, though the tenant of lands died in the Bishop's prison after having been convicted of felony, and even before purgation, his son was still allowed to be capable of inheriting. One John de Valoignes held a manor and various other lands. He was accused of having broken into a mill and carried off a mill-stone, and a quarter and a half of corn, and was found guilty. He 302 THE HEIR OF A CLERK CONVICT. [chap. iv. claimed his clergy and was delivered to the ordinary after having been convicted, to use the language of the record, as far as the conviction of a clerk was possible. A cer- tificate from the bishop in whose prison he had been confined showed that he had died there without purga- tion. The escheator, in the ordinary course, took his lands into the king's hand ; the inquisition, usual after the death of a landholder, was held, in the ordinary course, to determine what were his lands, and how held, and who was his heir ; the jury found, according to the ordinary course, that his heir was his son. Everything, in short, was done which would have been done had Valoignes never been convicted. But had he not successfully claimed benefit of clergy the issue would have been entirely different. The lands (unless, indeed, it could have been proved that they were entailed, which, in this case, was not even alleged) would have remained in the king's hand a year and a day after the conviction of Valoignes, and would then have escheated to the lords of whom he held. The finding of an heir by inquisition would have been of no avail to the son, for felony corrupted the blood and extinguished all rights of inheritance. It may easily be imagined how great was the jealousy excited by such privileges in a society in which partisan- jealousies ex- ship was regarded as a virtue. We have seen clerks always how commouly laymen were acquitted ; but if when tried, it was probable before trial that a layman would be found not guilty, if it was still more probable that an approver would die or be hanged, it was almost certain that any one who could claim benefit of clergy would be convicted. In the whole of a series of rolls for the year 1348, there is hardly an instance in which a clerk who CHAP. IV.] UNPOPULARITY OF THE CLERGY. 303 was tried was acquitted ; and yet the number of instances in which clerks were tried is lamentably great. Stealers of cattle, burglars, habitual robbers, homicides, men guilty of sacrilege, and of habitually receiving felons or stolen goods are all protected as clerks after having been convicted of felony. Many even of the approvers, who as laymen would have been hanged, are as clerks delivered to the ordinary, and so contribute not a little to the ill feeling excited among the unprivileged. The lay jurors consequently displayed their party spirit with a consist- ency which shows that the facts of each case must have been entirely disregarded ; for a clerk they gave always a verdict of guilty, for a fellow layman a verdict of not guilty as often as they dared. The antipathy to the privileged class displayed itself also in more active measures than mere verdicts of guilty. No offence appears more frequently on unpopularity the rolls, or is more surely followed by an °f*eciergy. acquittal, than burglary at the house of a parson. The rectors of those days were among the very few rich men who possessed as many as half a dozen silver spoons. They did not live in castles, and their houses were easily broken. If the poor had little love for thenn as a class, the powerful cared little to protect them ; and those among them who did not act as receivers on behalf of criminal relatives were thus for many reasons the most common objects of attack. The right, claimed by the Pope, of presenting or col- lating to bishoprics or livings which fell vacant in England, was by no means in accordance with national sentiments, as the Statutes of Provisors and Premunire conclusively prove. The extent to which the evil prevailed, and the 304 PRIVATE CLERICAL WARS. [chap. iv. resolute determination of King and Council to suppress it, are indicated also in various records. Innumerable warrants issued for the apprehension of persons bearing papal bulls or other prejudicial instruments, and the impugners of the king's laws, as those among the clergy were called who appealed to Rome against presentations made in England in opposition to papal inhibitions. Even the Archbishop elect of Canterbury was compelled to take an oath renouncing all expressions in papal bulls which might be prejudicial to the king in respect of the temporalities of the see. The laity were not less eager to uphold their rights than the clergy, and the manner in which rights were up- Forcibie en- held in these times has already been illustrated tries into , ^,., ni-i churches! m the earlier part of this chapter. Both sides, scandalous scenes, according to custom, asserted their claims by force. While the parsonage was the object of attack by one class because it was known to contain some plate, it was the object of attack by another because the posses- sion of it was, for a time at least, a practical settlement of an ecclesiastical dispute. Forcible entry was as good a proof of the right to present, or to hold after presenta- tion, as of the title to a manor ; and forcible entries into churches and rectories became, as a natural consequence, the subject of many a commission, and many a pardon. The actual holders were driven out ; the place of worship and the dwelling-house were both held by an armed band. The parishioners had the edifying spectacle be- fore their eyes for weeks and for months ; the tithes, when due, or before, were collected and carried off with as much violence as might be necessary ; and the whole parish was the scene of a private ecclesiastical war. CHAP. IV.] EXECUTION AND EXCOMMUNICATION 305 Each party of course fought with all the weapons at its command, and in some cases the spiritual armoury was brought to bear upon the king's officers. Open warfare . . ^ , , . between the A suit arose upon one 01 these disputed presen- secular and /— r T7- • ) -n ecclesiastical tations, and the Court of Kings Bench made authorities. an order against the Bishop of Exeter for a considerable sum of money. The sheriff of Devonshire received the king's writ, in which he was directed to enforce execution upon the bishop's goods and chattels. He entrusted the task to the under-sheriff, who seized many head of cattle upon one of the bishop's manors, and drove them to Exeter Castle. When the tidings were brought to the prelate, he fulminated sentence of major excommunication not only against the under-sheriff but against all the men who had acted under the sheriff's orders ; and the excommunication was proclaimed in due form, at Barn- staple, by two priors and the parson of a Devonshire church. The bishop and his subordinates were sum- moned to answer for this act of contempt, and did in the end so far obey the law as to appear by attorney in the King's Bench. But in the meantime the whole county was thrown into a commotion, greater even than ordinary, by the scandal of open warfare between the secular and the ecclesiastical authorities. In addition to these causes of unpopularity, there was yet another which took from the clergy the love of the indigent and the sick, who had at one time, iwisappiica- . ^ tion of reve- perhaps, looked up to the Church as their only nues attached ^ ^ to religious protector. Religious houses which had been houses. founded expressly for the relief of the lepers and the poor had assumed, in some cases at least, a wholly differ- ent character. Their revenues were squandered by friars and nuns ; their very lands were alienated at the caprice VOL. I. X 3o6 REVENUES OF MONASTERIES. [chap. iv. of the principals, and contrary to the wish of the founders. These abuses are mentioned, even in the official docu- ments of the time, as reasons for the failing devotion of the people. Complaints against Alien Priories — the ' cells ' or branches of foreign religious houses, which enjoyed lands in England — had been heard even in Parliament, and were prompted by a not unnatural disinclination to see foreigners absorb revenues which might have sup- ported more deserving English. In short, there was a prevailing impression, fostered still further by the reluc- tance of the wealthy abbots to do so much as repair the roads which passed through their lands, that the clergy uniformly attempted to evade the performance of duties comparatively light, while the laity were overweighted with the burdens of military service and heavy taxation. Like the lawless deeds of the knights, the lawless deeds of the clergy were frequently done in asserting a real or supposed right, but like them also frequently assumed a form to which not even casuistry could give any other name than crime. So many exploits of a criminal nature, in which both knights and clerks were engaged, have already been narrated, so many offences of which clerks were convicted have been incidentally mentioned, that it would be invidious to devote a very much greater space to misdeeds purely clerical. But the subject has so important a bearing upon general history, and aids so much towards a true comprehension of the times, that it would be false delicacy to omit altogether some details which illustrate the writings of Chaucer and Wycliffe, and show whence came the bitterness remai'k- able in the Vision of Piers Plowman. Bloodshed was as familiar to the clergy as to any other class — not only to those who were vaguely described as CHAP. iv.J HOMICIDES BY PARSONS. 307 clerks, but to chaplains and parsons of churches. It must be borne in mind that the materials for the present chap-- ter are, almost exclusively, the Public Records Familiarity of of a single year. To those who search them with violence ° ■' _ _ _ and blood- conscientiously they tell a tale of which it is shed. impossible to miss the meaning. They present the state of society as it actually was ; and the following incidents, selected almost at random, give a better idea of the age than volumes of praise or vituperation. The parson of Stockton Church was appealed by a widow for having killed her husband ; he could not be found, and was out- lawed. Another parson was appealed by another widow for having been one of four who killed her husband ; two of them could not be found, and of those two the parson was one. A parson was one of three accused of another murder by a widow. A clerk convict was delivered to the ordinary after having been found guilty of killing a man on one occasion, and robbing a widow on another. The prior of St. Sepulchre's, Warwick, and one of his brother monks were also accused of homicide. The parson of Trent Church, less lawless than some of his brethren, committed a few offences then regarded as mere trespasses, for which a fine was ample punishment. A verdict had been found, with respect to a certain chantry, by a jury summoned to act under the escheator. The parson disapproved of their finding ; and, as the escheator was his friend, he had no difficulty in possessing himself of the record. He broke the seal, tore the docu- ment to pieces, and threw the fragments into the fire. He used to amuse himself by hunting without the king's licence, and by breaking his neighbours' parks when sport invited him. The Court of King's Bench condemned him to make certain payments for his plea X 2 3o8 FUGITIVE MONKS. [chap. iv. sures, but it does not appear that destroying a legal document was in this instance regarded as a more serious offence than poaching. If the ordinary conduct of the clergy was not of a character to command the respect of the laity, the respect Want of re- °^ ^^ clcrgy for members of their own body th^'cS"^ was by no means exalted. Monks of various oTthe1"own orders were in the habit of throwing off the °^^' religious habit when they pleased, and of wan- dering about the country in disguise. In the warrants for their arrest they are further described as ' apostates, whose insolence must be repressed, who are bringing ruin upon their own souls and scandal upon the brethren of their order.' Instances in which attacks are made by clerks upon clerks are by no means uncommon ; but perhaps the best example of demoralisation in a religious house is presented by Ramsey Abbey. There, on the first Sunday after Easter, the refectory was broken open, and the silver cups and salt-cellars, the mazers, and the rest of the plate belonging to the house were carried off. When the loss was discovered, it was discovered also that three of the monks were missing, but it was never known precisely how many were implicated. Of these three only two were captured ; one died in prison, the other was found guilty of burglary and robbery, and handed over to the ordinary as a clerk convict ; the third, no doubt, joined one of the gangs of brigands which in- fested the country, and in which he found his true voca- tion and congenial society. It was in such deeds as these, and in deeds of a similar Sacrilege a character, that the lay robbers found encourage- common .... offence. mcut and mspiration to perpetrate acts of sacri- lege which could not otherwise have occurred in an age CHAP. IV.] SACRILEGE. 309 remarkable for superstition. Nothing, however, was held sacred by the thief, who perceived that men called holy did not hesitate to steal. Church-breaking is an offence which is by no means uncommon on the rolls of the criminal courts. At Scarborough, the chapel of the Blessed Virgin Mary was broken, the rings of gold and silver with which her image was decked were torn from its fingers, the clasps from its dress, and every ornament from its body. The very cross which was deposited in the chapel was carried off, and found in the house of a receiver. It is somewhat strange that such a crime was not regarded with any of the fanaticism which was dis- played a few years later towards those unfortunate heretics whose only offence was a mere religious opinion some- what different from that of their persecutors. In this case of chapel-breaking the ordinary course of the com- mon law was followed ; the chief offender happened to die before he was brought to trial ; the accessaries after the fact — or receivers — urged, as usual, that they could not be convicted as accomplices until the principal was convicted on the main charge, and they were, as usual, dismissed on finding sureties for future good behaviour. Such were the relations between clergy and laity as disclosed by the records of the year before the The circum- T~ii 1 -r^ 1 A 1 • • TTT iTr n Stances which Black Death. At thu time Wyclme, as well as moulded the ^ . minds of the author of Piers Plowman s Vision, and, per- wyciiffe, Chaucer, and haps Chaucer, were young men, and at the age the author of at which impressions are most easily made, mans vision. They saw with their own eyes those wild and lawless scenes, the faint reflection of which in contemporaneous documents may excite the wonder of modern lawyers and modern moralists. They knew how commonly forgery was practised by all who could write, how readily 310 BEGINNINGS OF LOLLARDISM. [chap. iv. verdicts in opposition to facts could be obtained from packed juries, how easily judges could be bribed, how thoroughly corruption was diffused through every class. In the Vision, and in the writings of Wyclifife, it is pos- sible also to discern the mental effects of the most terrible pestilence which ever devastated Europe. The horrors of the time seem to have given men new intensity of feeling and greater depth of thought, and to have left a shadow behind them which could not be wholly dissi- pated. Chaucer, as courtier, and perhaps because he was a younger man, took the humours of the time more gaily. But in the works of the three authors may be found all that is necessary to explain what the rolls leave unexplained, and to complete the historical picture of the age so far as history can render any picture complete. In them we have, as it were, a bridge connecting an old state of society with a new, and enabling us to pass freely over the gulf which at first sight appears t-o separate a period of religious stagnation from a period of great re- ligious activity. There is indeed nothing remarkable in the teaching that a national affliction is a punishment for the sins of a nation ; there have before and since been subtle satires like those of Chaucer, as well as bitter complaints like those of the Vision. But the period selected as the subject of the present chapter is the earliest period in the history of the world at which it is possible to see in copious and authentic records the surrounding circum- stances moiilding the minds of great writers. As there were apostates from some of the religious orders, it is by no means impossible that Lollardism had begun to show itself even before the Black Death had given a more serious turn to all human thoughts. The friar, according to the poets, was always welcome in the CHAP. IV. J THE 'PLOWMAN' AND THE FRIARS. 311 layman's house when the layman himself was absent ; and for the man who was licentious the 'religious garb served as a most useful introduction. As, _, Their works, therefore, renegades had little to gain by a mere JJ^'R^o^ds"''" act of apostasy — unless, like the monks of p°^ure'onhe Ramsey, they carried away the plate — there is ^^^■ good reason to suspect that a necessity for reform was already perceived by some of the more conscientious members of the religious orders. The abbot and fellow- monks who lodged within the walls of the monastery, and the ' limitour,' or monk who held a licence to beg within a limited district, alike found that the habit of their order would, if discreetly managed, ensure for the wearer more ample fare by day, and a softer couch at night, than could be obtained without it. The courtier and the rustic have precisely the same facts to tell, though they employ somewhat different language. When Chaucer says — ■" A frere there was, a wanton and a merry, A limitour, a full solemn^ man," and when he adds, " Somewhat he lispdd for his wantonness, To make his English sweet upon his tongue," the words call up the image of the libertine monk as effectually as all the coarser invective of the Plowman. The Plowman, however, is most successful in conveying the notion that the clergy, who ' were loth to swink,' or work, swarmed all over the land — " Hermits in a heap With hooked staves Wenten to Walsingham And their wenches after;" and, continues he, " I found there freres, All the four orders, Preaching the people For profit of themselves." 312. EDUCATION IN ENGLAND [chap, iv." It is impossible, also, to avoid the suspicion that Chaucer is quietly satirising the nuns in his description of Madame Eglantine, the Prioress. She is represented as a kindly woman, and — for the fourteenth century — most charming ; but it is not without a motive that the poet adorns her with a brooch, and that on the brooch there is a Latin inscription which is, when translated into English, ' Love overcomes all things.' In Chaucer's writings, too, as in the corruptions of which the Records show that the courtiers were guilt}'. The Court : may be perceived the tone of the Court under the state of '■ education. Edwardlll. A century and a half had wrought but little external change. Such as the courtiers were at the end of the twelfth century they appeared to be even towards the end of the fourteenth. There was, however, this difference — that in the fourteenth century the Court possessed a Chaucer, and in the twelfth it had none. There had now been for more than two hundred years a class, small indeed, but ambitious, in which the males were com- pelled by their vocation to have a sufficient knowledge of at least two languages. The pleadings in court had been in French since the time of the Conquest ; the reports of leading cases, or year-books as they were called, begin- ning with the reign of Edward I., were also in French ; but most of the treatises on law, the official writs, and the greater part of the Public Records, were in Latin. The Rolls of Parliament were partly in Latin, partly in French. It was, therefore, absolutely necessary that every one who was a candidate for any legal appointment, or aspired to be a pleader, should be conversant with both Latin and French. During the first few reigns after the Conquest, a lawyer might perhaps have required no more intimate acquaintance with English than a familiarity CHAP. IV.] IN THE YEAR 1348. 313 with the technical terms of law and finance which had been in use before the time of the Conqueror. But the very adoption of those terms into the legal vocabulary aided in keeping alive a certain interest in the tongue of the subject population. The contempt implied in the exclusion of English from all the higher functions of a language was not, indeed, mitigated by a statute that it should be spoken in courts of law till Edward III. had been thirty-six years on the throne, when the distinction between Englishmen and Frenchmen, implied in the presentment of Englishry, had been abolished only two and twenty years. Before this time, however, the native speech had been so far recognised as to be thought worthy of a place upon a roll of Letters Patent, in the reign of Henry III., where a translation appears in Eng- lish of a solitary document enrolled elsewhere in French. It must then have made its way steadily upwards as the development of parliamentary government brought the different classes into closer contact ; and Chaucer would not have written in English had it not in his days been commonly spoken at Court. So m.uch of education and of mental culture, there- fore, as is implied in the acquisition of three different languages was possessed by a knot of courtiers in the time of Edward III. The native heads of religious houses could speak English, and such French as Chaucer ridi- culed under the name of French of the school of Stratford- at-Bow. Those of the clergy who performed religious services could patter a prayer in Latin if they could not understand it. A few monks had sufficient knowledge to translate the Latin charters of their monasteries — a few legal officials sufficient to draw out a writ, and enrol the proceedings of the courts. There must also have 314 THE ENGLISH LANGUAGE. [chap. iv. been some Englishmen who, from the necessities of 'their callings, had acquired a superficial knowledge of French, such as a Swiss courier or a German waiter now possesses of English. The mass of the people,^owever, was in the densest ignorance ; and in a complaint made in Par- liament, concerning foreign ecclesiastics who held benefices in England, there is the clearest evidence that English was the only language generally known. It is there expressly stated that these intruders from abroad could not understand the language of the common people, and that the common people could not understand theirs. Traders of the higher class, who passed to and fro be- tween France, the Netherlands, and England, had some education, and must have been able to speak French as well as to read the inscription on a coin. But the lower class of retail dealers, who had never been beyond sea, had no knowledge of letters, as may be inferred from the defence already mentioned of two of them, when accused of having base money in their possession. Nor, indeed, could such a privilege as Benefit of Clergy have been made to depend upon ability to read, as it was long after this time, had reading been an accomplishment possessed by any but a very small class outside the ranks of the clergy themselves. Education, having thus for many generations been the exclusive property of a few, but having been, for Effects of the those few, of a very high order, had caused a adoption of 1,1 » , 1 1 1 1 the English most remarkable contrast. It had developed the Court, a Black Prince who knew how to be generous to a fallen foe in the midst of almost incredible cruelties. It had developed a Chaucer, and a minute section of society which could appreciate him, in the midst of a people which was only beginning to be civilised even CHAP. IV.] COURTIER AND PEASANT. 315 in the principal towns. But there was no small gain when the courtier began to write in English. The ring of Chaucer's verse could not fail to be heard by English- men outside the c'Surt. Though it was not like the ring of the Plowman's ruder metal, it could be understood by the Plowman and his listeners, and the sounds raised by the Plowman could be understood at the court. Thus the adoption of the English language in the higher ranks was the first step towards the diffusion of that mental cultivation which had previously been restricted to a class. Thus at last, and thus only, a truly national life became possible. The Pope and the clergy had been satirised in song in the reign of Henry II., but the songs had been written in a language to which the people were strangers ; if the villein hated the abbot at whom the courtier laughed, there was all the antipathy between courtier and villein which exists between men of different races speaking different languages. But when the cour- tier imitated the speech of the villein, and each discovered that they had, in some respects, common wants and common aims, there was already the beginning of a new state of society. Courtiers could lead villeins and towns- men against other courtiers for higher aims than the possession of manors, or even of thrones. Common speech was leading the way to free speech, common grievances to common action. Though the Canterbury Tales may seem to be wholly unconnected with the heretics of St. Giles's Fields, the circumstances which moulded Chaucer's thoughts into English were the cir- cumstances which placed Oldcastle at the head of the Lollards. Many a generation, indeed, was yet to pass away, and many a trouble to be endured by England, before a brutal and superstitious populace could be even 3i6 IMPORTANCE OF THE YEAR 1348. [chap. iv. partially imbued with a spirit of Christian charity. Many a quarrel was to arise, many a battle to be fought, many a human being to be burnt, before the printing-press, when invented, could be brought to the aid of humanity and scatter even a few crumbs from the tables of thinkers among the ignorant and thoughtless. But national unity became possible when there was a national language spoken by prince and peasant. The bitterness engen- dered by conquest was softened when the conquerors learned the tongue of the conquered, and when the townsman began to feel that there was no longer a foreign master at his gates, who might any day revoke the charters granted with reluctance to English burghers. Men engaged in commerce began to be a little more confident ; with confidence came an extension of trade. Some ingenious speculator abroad, perceiving the in- creased demand for parchment, on which alone it was the custom to write, manufactured paper as a substitute, and thus prepared a foundation, without which printing would have been useless. Such were the small begin- nings of those mighty changes which the world has seen since the reign of Edward III., and which acquire new force with every movement. Before the Black Death they had gone no further than a recognition of the English language as becoming to the lips of men in every grade, an increase of wealth following upon the development of the wool trade, and a corresponding growth of town influence and strengthening of town cor- porations. The reasons for the selection of the year before the Black Death to be the theme of so long a chapter as the present may be summed up in a sentence. It is a year in every way representative. By a sytematic examina- CHAP. IV.] CHIVALRY AT ITS BEST. 317 tion of its records, the state of society during a long period can be more favourably studied than by a perusal of all the chronicles from the time of Henry II. ^, „ ■' The Year downwards. A mere narration of a few political ^fTA'^^.u r Black Death events, a description of a struggle between j'Je year"the opposite parties, and a catalogue of the laws vlfry afits' which have been passed, though aids to a com- "^^'^ prehension of the life led by our forefathers, are not sufficient to bring the actual conditions of that life clearly before us. The meagre stories of mediaeval annalists, and the dry details of the Statute Book, are but the skeleton of history ; the flesh and blood can be seen only in the every-day doings which appear upon the records, and which only there appear in their true proportions. As these documents were drawn up year by year, the information which they convey reproduces all those phases of human existence which came within the ken of the law courts at any given time, and is free from the distortion or exaggeration which are inevitable in the pages of the chronicler, or in any mere series of extracts. The year before the Black Death, too, closes one well- marked division in the History of England. All that the legislation of Henry II. and of Edward I. could effect had already been effected ; the parliamentary form of government was established beyond all danger of overthrow, and there was nothing in the relations of England with other countries which could cause her in- ternal condition to appear otherwise than to the greatest advantage. There were, as there had been for centuries, wars and rumours of wars, but the arms of England were almost uniformly successful, and peace was not in those days regarded as a possible blessing, nor indeed as a blessing at all. 3i8 STRUGGLE FOR NATIONALITY. [chap. iv. This, in short, was the age of chivalry at its best ; neither statesmen nor lawyers could further improve the habits of the people so long as that age was to continue, because it was the highest possible develop- ment of those institutions (if institutions they can be called) which had been introduced by the destroyers of the Roman empire. Later history shows in every cen- tury the gradual decay of barbarism. Though barons were long afterwards strong enough to be king-makers, the national sentiment soon began to declare itself against the sovereign powers claimed by private individuals. The towns taught peasants the value of their labours, and attracted them from the ranks of a baron's army to the greater independence promised in the exercise of some city craft. Statutes against liveries, or in other words, against the uniforms worn by soldiers serving under petty princes, followed each other in a rapid suc- cession, which showed, not less clearly than the Wars of the Roses, how feeble was a mere enactment against customs handed down from generation to generation. But the stronger the townsmen became, the more were all their interests opposed to knightly brigandage and lordly independence ; and when striving for their own in- terests, they were striving for the interests of the nation. The merchant of the fourteenth century desired peace no less than the merchant of the nineteenth ; but most of all he desired, what seemed to be least within his reach, peace and harmony within the realm of England itself. His efforts would have been hopeless had he not secured representation in the national parliament ; and long as it was before they bore fruit, it might have been still longer had not the Black Death come to his aid at a time when he enjoyed more prosperity than had been possible for CHAP. IV.] MISERIES OF THE PAST. 319 him since the days of the Romans, and when feudaHsm was already falling into decay. The year 1 348 is thus one of the great land-marks of the past as well as the year in which the old society appears to greatest advan- tage. It is only when we have thoroughly realised to ourselves what that society was that we can know how different is the state of society in which we live ; it is only by measuring our distance from that far-off land- mark that we can know how much we have advanced. It is with difficulty that a terrible pestilence can be calmly regarded as a benefit to mankind. Yet, when mankind lived as they were living in England g^enes to be before the Black Death, any event which, even oiTsuraivo^rs indirectly, tended towards a favourable change ° ^ ^^^' in the conditions of life must be considered a gain to posterity. For our ancestors we can only feel the deepest commiseration when we remember what they have suffered in order that we may enjoy. In those days not only were ignorance and crime in close alliance, but both were strong in their union, and were always closely at- tended by superstition and disease. There was no know- ledge of the laws of health to give courage in meeting the plague, no sincere religion to give comfort in death or bereavement. Those who were to survive the coming pestilence were to survive horrors such as, perhaps, the world has never seen, either before or since. In the midst of bloodshed, fraud, and debauchery, and with a grovelling dread of the Unknown, they were to hear first a whisper from the East of a new malady creeping, but not slowly, ever nearer to England. If one traveller brought the news that it was in India, another was follow- ing with the tidings that it was already in Europe. The next could tell a more appalling tale with new circumstances 320 APPROACH OF THE BLACK DEATH, [chap. iv. of mystery ; for he had heard that even the dull earth trembled at the approach of the Death — that sometimes it opened to swallow up whole cities, as though to antici- pate or complete the ravages of a new master. The gossiping friars could soon excite the pity of their female admirers by accounts of the fate which had befallen their brethren in France — for at Montpellier, it was said, there were but seven Friars Preachers left out of a hundred and forty, and at Marseilles not one out of a hundred and sixty. Before the autumn of 1348 was ended, a rumour spread that the shores of England were already attacked by an enemy more deadly than Scot or Frenchman. If any one asked where the blow had fallen first, he re- ceived more answers than one ; for the evil spread too rapidly to be traced to a single source. Here, as else- where, the Plague followed the course of the sun, from east to west. Where it struck it slew — not only surely, but swiftly. Many died in a few hours ; few survived the third day. Ere many weeks had passed, all public and private business ceased. The judges no longer went their usual circuits, no longer sat in the courts at West- minster. Men of all ranks seemed to lose even the desire to get wealth or to keep it. No rank and no occupation gave exemption from the Black Death. The clergy perished in numbers so great that the churches were commonly left without a priest to perform any of the services. The Archbishop of Canter- bury, newly consecrated by the Pope, returned to England only to die within a few days after he • reached London. So terrible was the mortality in the country, during the following year, that none could be found to tend the sheep and cattle, which wandered as they pleased among the corn — itself left standing for want of reapers. The CHAP. IV.] RAVAGES OF THE PLAGUE. 321 plague among men was soon accompanied by a murrain among beasts, caused, perhaps, in part by inevitable neglect ; and this tells more plainly than the baseless conjectures of medieeval chroniclers, how great was the loss from the plague itself. Although heaps of carcases lay rotting in the pastures, the immediate effect upon prices was the reverse of that which it would have been had the population suffered no diminution ; and live stock could be bought for less than one-half of that which had been its market value before the outbreak of the pesti- lence. However great, therefore, may have been the decrease in the supply of cattle, the decrease in the number of human beings who created the demand must have been proportionately far greater. But other causes, as will be shown in the next chapter, not only raised the price of all provisions in a few months to its former level, but called forth an Act of Parliament limiting the sums to be charged by dealers in provisions. A strange variety of scenes, indeed, was witnessed by those who carried the recollection of the year before the Black Death into the stormy times which object of the present followed it. The disorganisation of a society chapter. most imperfectly organised, and the growth of a new system out of the decay of the old, are subjects which must be reserved for treatment elsewhere. The object of the present chapter has been attained, if it shows with sufficient clearness what was the actual condition of our forefathers in the year 1348, how insecure were their lives and their property, and how vast is the difference between them and us in manners, in sentiments, and in knowledge. VOL. I. 322 CHAPTER V. FROM THE BLACK DEATH TO THE ACCESSION OF HENRY VII. ONE of the invariable effects of a Great Plague is to loosen the bonds by which men have previously been held together. This was observed alike by Thu- cydides during the Great Plague in Athens, and by The social Dcfoe during the Great Plagufe in London. On Ivei^' Great ^^^ ^'^^ hand is developed a recklessness which Plague. ggj.g ^j. j^Qyg]-^^ ^ij ^]^g conventional restraints of society, and all the natural ties of affection, and on the other hand a depth of feeling which carries religion to fanaticism. And though there was neither a Thucydides nor a Defoe to describe the Black Death, we may be certain that the operation of similar causes upon human beings was not very different in the fifteenth century from that which it was in the seventeenth, nor from that which it had been in the time of the Pelopohnesian war. Those who did not faint by the way became, according to their temperaments, either more callous or more earnest than they had been before the calamity. Much of the fabric of the mediaeval constitution was thus destined to crumble away when its powers of cohesion, never very strong, were weakened from within, and when it was assailed by new forces from without. The Black Death taught malcontents, both lay and CHAP. V.J BOND AND FREE. 323 ecclesiastical, their strength. The labourer, whether bond or free, learned the value of his labour ; the Effects of the 1 1 T • r t • 1 1 • 1 • 1 Black Death preacher who was dissatisfied with his bishop, in England. or with the superiors of his order, learned how easy it was to obtain an audience composed of men who had other reasons for dissatisfaction. Thus an impulse was given to causes which were indeed already at work, and which would have produced sooner or later their natural effect, but the action of which might have been retarded for many generations, had no pestilence set them in motion. The first sign of the changes which were to be brought about, was the demand of all labourers, and especially of those employed in agriculture, for .^j^^ statute increased pay. The mortality, everywhere ter- °f labourers. rible, had been greatest among the labouring population. When the supply of labour was diminished, its value of course became higher. Employers began to compete for it, and to offer new terms. Workmen, discovering their own worth, raised more and more the price which they asked for their services. With labour all kinds of goods, and especially provisions, became dearer ; and Parliament, in alarm at what seemed a subversion of the ancient order of society, passed the famous Statute of Labourers, by which the employed were forbidden to receive, and the employers to give, more than had been paid for labour before the Plague, and dealers in provisions were re- stricted to prices which the lawgivers considered rea- sonable. In this statute is the first legal recognition of the fact that the feudal system could not include all the rural popu- lation in its grasp. Two classes of labourers ^^ ., ^ " ^ The bond are mentioned — those who owed, and those who ^^^ *® ^'■^^• y 2 3*4 HISTORY OF VILLENAGE. [chap. v. did not owe obedience to a lord — the bond and the free ; and as those who held by a free tenure and tilled land of their own were not included in the provisions of the Act, it is clear that there had grown up a class of men, nomi- nally at least free, and yet without any definite means of support. This is further made apparent by a very stringent clause against giving alms to beggars able to work. The origin of the lowest grade of free-men has afforded a subject for the dissertations of many historians, and is Sketch of necessarily obscure in proportion as our ear- the history of . ^ yiuenage. Her history is incomplete. When Southern Britain was conquered by invaders from beyond the North Sea, most of the natives who were not slain, or who did not find refuge in towns, must have sub- mitted to be, under one name or another, the slaves of their conquerors. At a somewhat later period, when land became the property of individuals, and none was common to a tribe, the dependence of the smaller holders upon the greater reduced the weaker freemen to a condition not very widely distant from slavery. In an age so brutal as that before the Norman Conquest, none could have enjoyed the lord's protection unless he was content to do the lord's bidding, whatever it might have been. A refusal could easily have been avenged by an accusation involving a heavy pecuniary penalty, which the accused would have been unable to pay, and which would have reduced him to the condition of a slave. Once made a slave, the refractory churl could be sold and shipped off to Ireland, or to any other country in which Christianity'was professed. When Domesday Book was compiled, a distinction was observed between the slave and the villein — the one CHAP, v.] SLA VES AND VILLEINS. 325 probably representing the actual slave originally made in war, the other the churl, who held a plot of land, but who was compelled to perform services, either improvement fixed or uncertain, for his lord. It has often tk)n^of d^ves been asserted that these two classes were sub- man con- °^' jected to a harsher rule after the Norman Con- '^^^^' quest than before, but there is not a tittle of contemporary evidence in support of that proposition. On the contrary, one of the most remarkable of the Conqueror's laws is that in which the exportation of slaves is prohibited ; and the exportation appears to have ceased from that time forwards. In the benefits of this law the churls or villeins participated as well as the slaves, because the prospect before them, should they have the misfortune to be re- duced to actual slavery, was by no means so dark as when they might have been carried off, like sheep, to a foreign country. Indeed, it is doubtful whether penal slavery was a recognised institution after the Conquest, and it is certain that the institution did not long survive. To close the market against the foreign purchaser was necessarily to diminish the value of the slave in England. Human beings born in slavery must The slave , . , . , . befibmes an nave mcreased m number at a far more rapid infenorviiidn. rate than before ; they must have become at once more difficult to watch, and less worth the trouble of watching. Before the Conquest the runaway slave might fear to see a slave-dealer in every man he met ; after the Conquest it was not the interest of anyone, except of his owner, to pursue him. His greatest danger lay in the old laws concerning strangers, and in the duty imposed on the sheriff" to send him back to the place whence he came. But it was possible for him to find employment in the towns ; and, at the worst, he might meet a welcome among 32S DESCENDANTS OF THE SLAVES. , [chap. V. some of the bands of outlaws, who could not then export him. Thus at a very early period after the Norman Conquest the name of slave disappears, and the lowest ranks of men in the rural districts are called villeins. It is true that there was a legal difference between the villein in gross, whose bondage was to the person of the lord, and the villein regardant, whose bondage was to the land, and who could be sold only with the land which he held in villenage. In the deeds relating to the sale of villeins, it is declared sometimes that the land is conveyed with the villein who occupies it, sometimes that the villein is conveyed with his goods and chattels, and all his following or issue ; and in the latter case his value seldom exceeded four pounds of the money of those early times. But documents of either kind are rare ; the villein regardant passed with the manor when it was conveyed, and he was not necessarily mentioned in the conveyance ; the villein in gross was but very seldom sold by himself The distinction between the two classes was necessarily very faint, because whenever, as must commonly have happened, the villein in gross was permitted to till a plot of land, and his children tilled it after him, their position was prac- tically that of villeins regardant, and was little likely to be disturbed. At the time at which the Statute of Labourers was passed, the descendants of the men who had, before the The villeins Conquest, been slaves saleable in a foreign not the only i i i j r ^ r^ labourers. market belonged to one of three classes. Some of them were villeins rendering base services to a lord, and acquiring a prescriptive right to the land on which they were permitted to dwell ; some were townsmen prospering as members of a craft-guild, or earning a liveli- hood by one of the many occupations to be found in every CHAP, v.] BEGINNINGS OF FREE LABOUR. 327 town ; some were, perhaps, in turn, brigands and agricul- tural labourers — now robbing a merchant on his way to a fair, now receiving wages from steward or farmer, who asked few questions when grass was to be mown, or corn reaped, now begging on their way to the head-quarters of their gang. Among these three classes, the villeins felt the hard- ships of their lot more keenly than the others, and the Statute of Labourers added to their discontent, discontent Their lords had, according to the act, the first ^S:*ts claim to their services ; but where there was a '^'^^■ dearth of labour they were to serve other masters as soon as their lord's work was done. They were to be paid apparently at the rate fixed by the statute ; but according to the strict letter of the law, their earnings were not their own but their lord's. In many cases, no doubt, and perhaps in the majority, they were, as a favour, permitted to retain the money which they were able to make after the lord's dues had been rendered ; but the lord's power of seizure was none the less a reality and must have been a subject of bitter reflection to the villein and to all his household. The spectacle, too, of freemen working in the same field and secure from the claim of every lord after they had received the reward of honest industry. Growth of a must have added a new sting to the sense of labourers. injury which is never absent from the bondsman. Not only was there a roving class among whom the first title to freedom was the flight of some ancestor to a town, or his reception into a gang of robbers, but there were men who had in their own persons, or in those of their fore- fathers, been freed from villenage in due form of law, and whose origin was neither higher nor lower than that 328 INCREASED VALUE OF LABOUR. [chap. V, of the men still condemned to bondage. Even before the Conquest freedom was sometimes granted to a slave-; and in the year 1338 Edward III. empowered commis- sioners to liberate the villeins of the crown manors upon receipt from them of a certain sum of money. There is an appearance of liberality in this permission to the villeins to redeem themselves, when the amount of their ransom belonged already to the king as their lord. But coin is easily concealed, and a sudden demand upon all the royal villeins for all they possessed would have been a dangerous exercise of cruelty and power even in the fourteenth century. When, therefore, the king's necessi- ties compelled him to take the money of his bondsmen, the most prudent course was to give them their liberty in return. Other lords did likewise, and thus the class of inferior freemen was continually growing, and by its presence aggravating the discontent of men who were not yet free. The Black Death, and the Statute of Labourers which followed it, though they did not immediately cause a The coming rebellion, yet rendered a rebellion inevitable ceierafed^ whenever a favourable opportunity should pre- t e ague. ^^^^ itself ; and a rebellion was in those days certain to be accom.panied by most atrocious crimes, j^ven the strong arm of Edward III. barely sufficed to 'keep back the coming tumult. A re-enactment of the statute, and commissions to enforce it, were of little avail against an increasing competition for labour to which a new impulse was given by a recurrence of the pestilence in the year 1361. Edward, who from his success in war commanded the respect of all classes, and who was not wanting in the arts which win popularity, ended his reign in comparative tranquillity. Neither he nor his advisers CHAP. V.J THE DOCTRINE OF EQUALITY. 329 knew that in attempting to limit prices by law they were committing themselves to an imppssible task. To them it seemed a part of good government to maintain all the old land-marks of society, and they perhaps deluded themselves into the belief that they were succeeding in their aim. But when the sceptre dropped from the hand of a vigorous man into that of a weak boy, everything was ripe for an outbreak ; and it was not long before the outbreak came. Beneath the already ruffled surface of villenage there had been a subtle influence at work which rendered the storm doubly formidable. Discontent with the They were 1 .... . r ^ accelerated existing religious institutions was not confined to also by reii- _ _ gious discon- the laity, but showed itself openly among those t™t- monks whom the law termed apostates, as well as among some of the secular clergy. With perfect good faith, no doubt, but with a zeal which the times rendered dangerous, these religious reformers preached against the existing state of society, and deduced from the Scriptures the doctrine that all men are equal. Nor did they restrict themselves to the maintenance of this principle in the abstract. They possessed what was denied to most of the villeins — the arts of reading and writing ; and they could translate with more or less accuracy a Latin record into English. Transcripts of Domesday Book were procured for the villeins, whose advisers assured them that in these docu- ments they had proof of the freedom enjoyed by their forefathers at the time of the Norman Conquest, and that freedom was their birthright, not only according to the laws of God and of reason, but also according to the law of the land. In the very first year of the reign of Richard II., the villeins in all parts of the country, acting apparently on a 330 THE VILLEINS AND DOMESDAY. [chap. v. preconcerted plan, refused to do the bidding of their lords. When threatened with punishment they exhibited Claim of the their transcripts of Domesday, declared them- villeins to be ^ free. selves free, and banded themselves together in threatening array. Parliament immediately passed an act declaring that the interpretation put upon the passages in Domesday by the villeins was false, and that the transcripts should be of no avail to any one who produced them in evidence. All refractory villeins were to be committed to prison without bail if their lords should so desire. Thus the semblance of a legal claim was met by the semblance of a legal enactment ; but a statute denying the right of a subject to justify himself by reference to the most venerable legal document in the realm was in itself so unjustifiable and raised so great an outcry that it was repealed in the next year. The question of law re- mained undecided, but the lords and their bondsmen pre- pared, after the manner of the time, to settle the dispute by force. An attempt to show from Domesday Book that the lower ranks generally were in an inferior condition, at the Legal aspect acccssiou of Richard II., to that which they had of their case, g^jgyg^j ^j. jj^g ^jj^g Qf ^-j^g Conquest, was necessarily foredoomed to failure. At the earlier period there were slaves In the land liable to exportation until the Conqueror forbade the practice ; at the later period even a villein in gross was seldom or never removed from one part of England to another. It might, however, have been quite possible to prove that a particular plot of land, held nominally by a freeman when the Great Register was compiled, was held in villenage under Edward III. But such a fact, even if demonstrated, was not of itself sufficient evidence that the tenant had suffered CHAP. V.J PRESCRIPTION AND PROGRESS. 331 any wrong in the eye of the law. Penal slavery had become extinct, but it was still possible for a freeman to become a bondsman according to due legal process ; and even as late as the reign of Henry VI., a collector who had been appointed by the Bishop of Durham, and whose payments had fallen in arrear, entered into a recognisance to become. a bondsman unless he made good the deficiency before a given day. To adduce a single document as a bar to the claim of the lord was therefore as useless as it would now be to assert a claim to land on the ground that it had been held by. a remote ancestor, and to disre- gard all intermediate conveyances. The true title of the villein to be called a freeman lay not in ancient writings nor in legal quibbles, but in his value to the state and in the changed circumstances of the times. To seek for pre- cedents in remote antiquity is, if the search is indefinitely continued, to bi'ing back as models for civilised men all the customs of savages. The hopes of mankind lie not behind them but before, not in prescription but in progress. At the very time when the sense of political wrong was inflamed by discontent with ecclesiastical institutions, the primacy was united with the chancellorship The passions of the lower in the person of Archbishop Sudbury. It classes in- ^ . , , ,, flamed by the was believed, rightly or wrongly, that a poll-tax Pou-xax. on all persons of the age of fifteen years was imposed by Parliament at his suggestion:. Taxes were usually farmed out, and collected, with all the roughness and ruthlessness which marked the times, by the farmers or their agents. False claims and every form of corruption had been the subject of complaint and enquiry from the earliest reigns of which any records have remained. But when a proof of age was required for the girls of every household, the 332 WAT TYLERS REBELLIOJST. [chap. v. collectors, who, like their betters, were filthy-minded and brutal, received, as it were, a legal authority to offer the coarsest of insults to the most innocent of maidens. They took care to avail themselves of the privilege, and in some instances, when the father of the family happened to be present, paid the penalty of their pruriency with . their lives. The whole of the population below the rank of freeholder or burgher received the provocation which was hardly even needed to force them into revolt. One cry resounded throughout the whole of England : Down with the tax — death to the Archbishop ! The grievance of the tax, when added to the grievance of bondage, was sufficient to convert a number of local riots Wat Tyler's ^'^^^ ^ general rebellion. The men of Kent were rebeihoa. soon oxv the march ; the men of Essex marched too, in a separate column, on the opposite side of the Thames ; and the commonalty of the neighbouring counties on either hand hastened to join the rebels. At Maidstone, the Archbishop's gaol was attacked, and John Ball, a preacher of the new school, who had been im- prisoned for teaching false doctrine, was released, and appointed chaplain to the insurgents. The leading spirits were Thomas Baker, Wat Tyler, Jack Straw, and a few others whose names betokened their callings. On the Kentish side of the river, however, the chief actor was Wat Tyler, by whose name the rebellion is generally known. He led his men to Blackheath, their numbers increasing every hour, and swollen at last by the London apprentices, who were as pleased as the villeins with the preaching of John Ball, and who believed that no satisfactory answer could be given to the question — When Adam delved and Eve span, Who was then the gentleman ? CHAP, v.] MOB-RULE IN LONDON. 333 There was no force near London strong enough to meet the rioters, who were for a time able to dictate their own terms. Their objects, apart from the ex- ^imsofthe tinction of villenage, which was the chief article ''*^'^- insisted on, are vaguely stated by the contemporary chroniclers, who seem to have had but little sympathy for them. The abolition, however, of some monopolies with respect to buying and selling, enjoyed by town corpora- tions, the right of every man to rent land at fourpence an acre, and to take fish and game wherever he could find it, and the reform of ecclesiastical abuses, seem to have been the chief points at which those who knew their own minds were aiming. But, even in more civilised times, the original cause of a rebellion is forgotten in the heat of tumult, and an indiscriminate thirst for blood takes the place of a desire for redress ; in an age of ignorance and brutality the horrors of mob-rule are almost indescribable. It was the ignorance of the age which had made Wat Tyler master of London, which was yet to prompt a petition of the landholders that no villein should be taught to read, which was to be modified only in the long course of years, and which is not annihilated even in the nine- teenth century. From specific complaints the rioters advanced to the general proposition that all laws were unjust, and that all lawyers ought to be killed. It followed, of London in , 1 1 1 . 1 • ■ 1 'he hands of course, that no man could be justly imprisoned, the mob : The Marshalsea prison was soon broken open ; the lawyers. the inmates of that, and, no doubt, of the other gaols also became recruits in the ranks of the mob. So bitter was the feeling against all who were in any way connected with the law, that they were beheaded when- ever they were met ; and, when their houses were stormed, 334 DESTRUCTION OF MUNIMENTS. [chap. v. it was said even the oldest .men among the rebels showed the agility of rats and the endurance of men possessed. The Temple, as being the head-quarters of the enemy, was burned, with all the priceless manuscripts it con- tained. Fire and sword were carried from one end of London to the other. With a not ill-founded suspicion that all Destruction legal documents were on the side of the old- men'ts and established order of society, Wat Tyler and his men broke open the buildings in which it was known that muniments were stored, and gave them to the flames. At Clerkenwell, where stood the Priory of St. John of Jerusalem, the work was so well done, that little remained but the bare walls of the church. The prior, Robert Hales, who was also Treasurer of England, possessed at Highbury a manor which he had converted, according to the notions of those days, into a second Paradise. Where they had found a paradise, the mob left only desolation and ruins. The most magnificent dwelling-house in England was that of the Duke of Lancaster — the Savoy Palace. It had but recently been built and stored with every known kind of treasure — with jewels and plate, with books and charters, and with apparel which could not be surpassed in the palace of any king in Europe. Against the Duke the insurgents at this time bore a special grudge — bred of disappoint- ment. He had, to a certain extent, supported Wycliffe ; they had been deluded, by some recruits from the north, into the belief that he had freed all his villeins, and, in the enthusiasm of the moment, they had declared that he should be their king, just as they had declared that John Ball should be their primate. Before they reached CHAP, v.] SLA UGHTBR OF THE RICH. 335 London, however, they were undeceived ; and, in the bitterness of their wrath, they declared that they would have no king bearing the Duke's name — John, they marched to the Savoy, battered down its walls, and burned all its precious contents. A gang of them entered the cellars and remained there, drinking and making merry till the falling masonry had blocked up every out- let. The cries of these self-made prisoners were, it is said, heard for seven days, but neither their enemies nor their comrades made any effort to rescue them. Not only in the Savoy did drink flow freely. Where it was to be had it was taken — with the consent of the owner or without. The men who were al- Bmtai orgies ready brutal enough became still more brutal ° ' '^"'°''' as they drank. Private vengeance was gratified as well within the ranks of the rioters as without, and rioter slaughtered rioter as he lay helplessly drunk or insen- sible. The apprentices, who seem to have regarded all masters as enemies, beheaded them whenever an oppor- tunity presented itself. Wealth was regarded as a cause of offence ; the more wealthy a trader was, the greater was the danger to his life ; to be rich, and to have ad- vanced money on the security of any tax, was certain death. One of the most prominent merchants in London was one Richard Lyons, who had been a farmer of sub- sidies and customs, and had been accused in parliament of bargaining with Edward IIL in a manner disadvan- tageous to the country, but profitable to himself He had been thrown into prison, and his property had been seized ; but the sentence had been reversed, partly, as was com- monly believed, through the influence of Alice Perers, the mistress of Edward. Upon this unfortunate man, who 336 PUBLIC PUNISHMENTS IMITATED, [chap. v. does not appear to have been guilty of any more heinous offence than that of engaging in the ordinary mercantile transactions of the time, the mob fell with more than their ordinary fury. They visited upon him the sins of the collectors, tore him from his house, dragged him through the streets into the open country, and murdered him at last in a hedge. A common remark at the time was that the rebels always cut off the heads of their victims. It is a com- imitation of '^o" remark in our own days that great crimes dons'? fate of always produce imitators. The beheading and bishop'^of quartering of traitors had, no doubt, produced Canterbury; . ^^ . . . . r n i Its enect upon the imagmation oi all classes. To imitate the public executions with which they had grown familiar by report, if not through their own eye- sight, was one of the first impulses of the victorious mob. They were in power, and they regarded their enemies as traitors. They had vowed vengeance against Sudbury, the Primate and Chancellor ; and their vengeance could not be satisfied except by such punishment as kings con- sidered meet for rebellious subjects. He had taken refuge in the Tower of London, together with Sir Robert Hales, the Treasurer, who, like himself, held a lay and an ecclesiastical office, and with some subordinates whom the mob hated for the part they had taken in the collec- tion of the poll-tax. The rioters besieged the Tower, and it was observed, alike by the chroniclers and the song- writers of the day, that the gentlemen appeared to have lost heart, and did not fight as became them. Through lack of courage or of management, the Archbishop, the Treasurer, and five others, fell into the hands of the besiegers, and were dragged to the block on Tower Hill. There they met the fate which others had undergone CHAP, v.] HEADS ON LONDON BRIDGE. 337 and were yet to undergo, with only a little more pretence of legality, at the hands of the executioner. As the heads fell, after the blows of the axe, they were fixed upon pikes and poles, raised aloft, so that the features might be recognised, and carried in triumph before the yeUing victors. The precession was one with which the neighbourhood was already, and was yet to be, only too familiar. It ended at London Bridge, where the bleeding heads were set on high for all the world to see. The rebellion, which had hardly been less formidable in other parts of the country than in the home counties, was at length suppressed, but only after pro- immediate mises had been made by the young king, which rebellion. parliament afterwards refused to ratify. The villeins dispersed, supposing themselves to be free-men ; they returned home only to find themselves villeins as before. Many of them were punished by the very death which they had themselves inflicted on others. Tresillian, the Chief Justice, who tried them, is said to have shown as little mercy to them as they had shown to the lawyers ; and all who were accused before him were executed with the severity which by law was due to the crime of high treason. Villenage was destined to die out rapidly through the increased value of labour and the demand for labour in the towns ; but the immediate effect of Wat Tyler's insurrection was to increase the exasperation of class against class. The rioters had shown what men per- sistently kept in ignorance can do in a brutal age when driven to desperation. The young king, though he had behaved with great courage, had shown that even kings may, under pressure of circumstances, promise that which they have no legal power to perform. With a rankling sense of injury, the oppressed classes VOL. I. Z 338 EFFECTS OF THE REBELLION. [chap. v. seem to have looked for consolation in the new religious Progress of tenets, which had already made progress among content. them. Wycliffe, in translating the Bible, had, as his adversaries maintained, thrown pearls before swine. The few who had acquired the art of reading and could procure a copy, were thus, to a certain extent, enabled to expound the words of Scripture to their fellows, and could, no doubt, draw a very effective contrast between the state of society actually existing and that which ought to exist according to the law of God. Had the higher ranks of the clergy taken a less prominent part, at this time, in political affairs, it is pos- charges sible that what was called heresy would have Mm^of^''' been more easily suppressed, and the eccle- and oth^e" siastical Organisation would have been in higher ''^' favour. But whenever there was any great political scandal it was more probable than not that a bishop's name would be mentioned in connection with it. An instance, by no means singular, of the charges which were rife against the great dignitaries of the Church, may be found not in the words of a prejudiced Lollard, nor in the vague sentences of a pompous chronicler, but in the more trustworthy records of the Parliament and the Chancery. William of Wykeham, bishop of Winchester, who is best known to posterity as the munificent founder of the great Public School at Winchester, 'and of New College at Oxford, held a number of high offices under Edward III. He was Clerk of the Privy Seal, Chief of the Secret Council, Governor of the Great Council, and, at one time. Chancellor. For eight years he was entrusted with the administration of the whole of the revenues of the kingdom, and received on behalf of the king the ransoms of the King of Scotland and the King CHAP, v.] CHARGES AGAINST BISHOPS. 3J9 of France. More than eleven hundred thousand pounds passed through his hands during this time, and it was alleged that nearly the whole of this vast sum, besides French coin, had been diverted by him from its proper receptacle — the royal Treasury. It was said that he had, against the express instructions gf the Black Prince, re- leased a number of distinguished French hostages, in order to make a profit for himself Accusations of a more precise nature were made against him of having remitted fines due to the king from certain persons and for certain offences ; but the most disgraceful of all was that he had, for a bribe, tampered with the Chancery Records, and so defrauded the king of half the dues upon a licence of alienation, of which also the particulars were given. Judgment was given against him by members of the Great Council ; and the temporalities of his bishopric were seized into the king's hands. Then followed a transaction discreditable alike to king and to subject. The bishop undertook to supply the king 'with three ships, to send fifty men-at-arms and fifty archers on board each ship, and to pay them, according to the king's scale of pay, for a quarter of a year. For this service he re- covered the temporalities of his see, and afterwards, in the revolution of the political wheel, he obtained a full pardon and exoneration from the services which he had undertaken to render to the state. Whether William of Wykeham was guilty of forgery and peculation, whether the Bishop of Norwich was rightly condemned in parliament for having xoneof traitorously received money from the French, ^mongpubiic whether the charges which were brought against "^^ almost all public men by their adversaries were true or false, can never be known with certainty. The men who were Z 2 34° MORALS OF PUBLIC MEN. [chap, v convicted or acquitted upon insufficient evidence in tlie fourteenth century cannot be tried upon sufficient evidence in the nineteenth. But it matters little to those who woulc form a true estimate of the times whether all men ir power were dishonest, or all political parties were in the habit of making false accusations against their opponents. The general tone of morality is the same in either case those who would be base enough to ruin an enemy, bj pronouncing him guilty of a crime which had never beer committed, would be base enough to commit that very crime when they had the opportunity. It was in ar atmosphere of unscrupulous intrigue, of restless ambition of pitiless hatred, of treachery, of dishonesty, and even oi murder, that the leaders of the day drew the breath of life, The commons grew familiar with proclamations in which every well known name was brought before them as the name of a criminal ; and among the best known names were the names of the bishops. Only a few months before the temporalities were restored to William of Wykeham, Edward III. entered upon the fiftieth or jubilee year o) his reign. The event was celebrated by a general pardon of felonies committed before the beginning of the year But the one person whose offences were at that time declared to be unparclonable was William of Wykeham and it was expressly provided that he should ' nothing enjoy of the said graces.' As soon as the old king was dead and a minor was on the throne, the bishop's deeds were no longer unpardonable, but pardoned. What s theme for the discourse of a Lollard preacher ! The part taken by the clergy in political affairs together with certain other practices, was also leading political discontent still more directly towards an alliance with religious discontent, and preparing the way for the CHAP, v.] THE POOR AND THE TITHES. 341 execution of heretics. The religious corporations were in the habit of acquiring to themselves the revenues of parish churches by a process which was happily Appropna- • • A 1 111 tions : the termed Appropriation. An advowson could then clergy, the . tithes, and as now be bought ; the owners of advowsons the poor, could then more easily than now be persuaded to part with their property in exchange for masses or other spiritual benefits. No sooner had a monastery, a prebend, a bishopric, or a half religious half military order attached a benefice to itself, than it became perpetual parson of the church, with a right to the tithes and the glebe. It appointed a vicar to perform the religious services, paid him as it pleased, and retained the surplus in its own hands. The consequence was that the vicars grew dis- satisfied, because they had not a sufficient allowance for their support, the secular clergy felt aggrieved when they saw a monk in a pulpit which they regarded as their own, and the poor complained loudly that they were deprived of what was legally their due. It had been the law in England, as elsewhere, long before the Conquest, that a fourth and afterwards a third of the tithes should be devoted to the poor ; and in this ancient maxim may perhaps be found the germ of parish relief But the ancient constitution of society was such that the old rule could never have had much practical value, except so far as the poor were members of the ecclesiastical body. The Statute' of Labourers, however, with its stringent provisions against beggars, and still more a Statute passed in the year 1 388 for the suppression of mendicancy and vagrancy, with the increase in the number of free-men who had no settled occupation, naturally led men to enquire how those who were starving ought to be fed. The ill-paid vicars and the apostate monks, no doubt, 342 CLERGY AND LOLLARDS. [chap. v. knew well enough the letter of the old law ; if they wished for sympathy, they and all the teachers of the new doc- trines, had but to point towards the stateliest building at hand, and to tell their hearers that ^n Abbot or a Prior within — an alien, too, perhaps — was growing fat on the goods which belonged to the commons, while the com- mons themselves were dying of hunger. Songs, more vigorous than delicate, were composed and sung from village to village, and their themes were, Agitation ^^^ *^^* °f Piers Plowman's Vision, the vices cilrg/: popu- ^"^^ rapacity of the clergy. The luxury of the lar songs. prelatcs, who rode out with escorts such as were the escorts of kings, the greediness of friars, who became dealers in wool, and dishonest in their dealings, the in- continence both of monks and of the secular clergy, whc squandered their gains in decking their mistresses, the absurdity of image-worship, and the good deed done by some Wycliffites, who beheaded the image of St. James, were the common topics of the songsters and rhymers. The practice of kidnapping the children of wealthy parents, in order that their inheritance might become the property of a religious order, was the subject not only ol a political poem, but of a complaint in Parliament. Ever the courtiers, and those who had no sympathy with th« Lollards, denounced, like John Gower, the corruptions o the Church ; and when the king asked for money the Commons suggested that it should be taken from the religious houses of aliens. Against this formidable agitation the clergy couk bring most powerful engines to bear. They said litri( in defence of the ecclesiastical system, which it was thei interest to uphold, but much of the speculative doctrine \yhich were an essential part of the teaching of tji CHAP. V.J HENRY IV.. AND THE CHURCH. 343 agitators. Superstition was as yet but little weakened ; and it was not difficult to impress those minds which had given no attention to the new belief with the ^1^^^,^^^^ notion that a doubt concerning the Real Pre- Renounce the sence, or the efficacy of penance, pilgrimages, orHen^°iv^ and image-worship, was a crime fraught with ^"^ "^""^ the most terrible consequences, both spiritual and tem- poral. The Church, too, was still a great power in the state, and when Richard II., a weak sovereign, was suc- ceeded by Henry IV., a sovereign whose title was dis- puted, the king could not, without great danger, have appeared positively hostile to the clergy. While, therefore, the repeated protests of the Commons in Parliament against ecclesiastical abuses could not be set at nought by the House of Lancaster, which had gained some popularity through affecting a desire for reform, the wishes of staunch churchmen were not without their weight. Hard pressed on either hand, Henry IV. discovered a middle course by which, perhaps, the throne was saved for him and his son. He gave to both sides a portion of what was asked. On the one hand he assented to a re-enact- ment and extension of the statutes against accepting papal provisions, and to the petition of the commons that in cases of appropriation one of the secular clergy should be appointed vicar. On the other hand, he permitted the clergy to do their worst against all whose doctrine was erroneous, and aided them by giving a sanction to a new statute, which rendered the burning of heretics easier. Henry V. adopted the same policy; and the first year of his reign was remarkable for two most dissimilar events — the suppression of Alien Priories and the accusation of Sir John Oldcastle. It has been held by lawyers that the writ for ' the burning of a heretic ' existed at the common law before 344 BURNING OF S AUTRE. [chap. •( this time, but issued only by special warrant from th king. The punishment of burning, in its worst form was certainly inflicted long before the Conquest, an( The writ for it may possibly have been applied to heretic the burning _ rjT TirT)i of a heretic, before the reign of Henry IV. But heres' rarely appeared in England before the fourteenth century and, except in the case of the Paterines (who, though no burnt to death were not less cruelly punished), it is diffi cult to find an instance even of a contumacious heretic It is still more difficult to find an instance of a relapsec heretic, to whom the stake was considered specialh appropriate. Nor woiild it be profitable to discuss, -a: many historians have done, the questions. whether Sautn perished by a writ which Henry IV. had no legal powe: to sign, and whether the statute which required sheriff: by virtue of their office to commit heretics to the flames upon the command of the diocesan, was invalid througl want of assent from the Commons. To those who hav( followed this history up to the present point, it wil appear idle to look for a nice consideration of technica details at a time when the papacy was trembling, and j dynasty was in danger. All we know, and all we neec know (whatever may be the legal aspect of the matte: to a modern constitutional or ecclesiastical lawyer) is tha the ecclesiastical party triumphed when victorious ii doctrine, just as one political party triumphed in turn ove: another, and executed its adversaries — sometimes, per haps, according to law, sometimes certainly in spite of it The first to suffer for the crime of heresy in thii new persecution was William Sautre. He is described .^ ^. - in the writ for his execution, as 'sometim( Execution of ' Sautre. chaplain.' According to the same document, h( had fallen into a ' most damnable ' heresy, had abjurec CHAP, v.] PERSECUTION OF HERETICS. 345 it, and had afterwards relapsed. Sentence was, there- fore, passed by the Convocation of the Province of Can- terbury, that he should be degraded from all ecclesiastical rank, and that he should be left to the secular power — Holy Mother Church having no further concern in the matter. The king, being zealous for justice, and true to the Catholic faith, wishing to defend Holy Church, to root out all heresies, and to visit with condign punishment all convicted heretics, directs his commands to the mayor and sheriffs of London. He informs them that, according to law, and the canonical institutions, such heretics ought to be burnt with fire. He requires them, therefore, to cause William Sautre, who is in their custody, to be carried to some public place within the liberties of their city, to be put into the fire, and there burnt to death, as a manifest example, to excite the horror of Christians. Sautre died, as too many were yet to die, a martyr in the literal sense of the word — a witness to the hideous barbarism of the age in which he lived. Other burnings followed, and the English populace seemed for a time in danger of becoming as familiar with the shrieks of burning heretics as with ^n-est of the bleeding heads and quarters of beheaded throughout traitors. Writs for the arrest of Lollards were "'^ '''"^''°"'- sent into every county, and many, whose names are un- known in history, no doubt perished, if not in prison or at the stake as heretics, upon the gallows as traitors. With such questions as have agitated controversial writers upon religion, this history has no concern— with questions whether this heretic recanted, and the other asked for mercy, whether the execution of one was a litde more or a little less legal than the execution of another. The one important fact must always remain, that the 346 CASE OF SIR JOHN OLDCASTLE. [chap. v. clergy desired the death of heretics by fire, and that there was not sufficient humanity in the kingdom to raise an outcry against such cruelty. The only protest which AVas made, or was said to have been made, was that which was natural to the age— an attempt on the part of the persecuted to escape from their persecutors by force. The most distinguished member of the heretical, Lollard, or puritan party, was Sir John Oldcastle, one Sir John °^ ^^ "^^"^y f^^ i^^" if^ th^ position of land- oidcastie. holders who went even so far as to adopt openly the opinions of Wycliffe. He was pronounced a heretic in an ecclesiastical court, and he was afterwards sentenced to death by Parliament, not only as a heretic but as a traitor. The proceedings were of an unusual character, and it has been suspected that Oldcastle suffered througli a forged record of indictment and process of outlawry A charge which, if proved, might implicate a number of the chief personages in the land in a conspiracy to oidcasties crush by fraud one whom there could have been inrouS^^n^' little difficulty in crushing by force seems, at first Bendi'— the sight, hardly to demand investigation. But as it erasure . j^ ^^^ ^£ ^j^^ ^.^^.^ cases in which the evidence can be brought before those who live in the nineteenth century as clearly as before those who lived in the fifteenth, there is some temptation to put so important a matter to the proof. An indictment, in which Oldcastle's name is mentioned, is enrolled on the judgment roll of the Court of King's Bench. In the same indictment appear also Walter Blake of Bristol, chaplain, and Roger Acton, of Shrewsbury, knight. Oldcastle's name stands first, and there is not the slightest doubt that it has been written upon an erasure. The parchment has for a space of more CHAP, v.] ERASURES IN THE INDICTMENT. 347 than two lines been scraped, it shows the roughness which always follows abrasion, and when held up to the light, it is seen to be obviously thinner in the suspected part than elsewhere. The two lines are written in a hand which, though strictly contemporaneous, is different from that which precedes and follows, and with ink which is con- siderably lighter. Nor is this all. In another part of the document, in which Oldcastle's name occurs incidentally in the original hand, the word ' said ' has been prefixed by interlineation in the hand in which the two doubtful lines are written. This is an indication, to all who are familiar with records or legal documents, that, whatever else may have been written where there is now an erasure, the name of Oldcastle was wanting. In these instruments, when- ever a person has been once mentioned, he is described at every subsequent mention as ' the said.' So far then it is beyond all question established that the indictment of Oldcastle as enrolled in the King's Bench is not, word for word, the document which might at one time have been read in the same place. The indictment bears date the first year of the reign of Henry V. The subsequent proceedings in Parliament were not instituted immediately, but four years jjis out- afterwards. In the meantime Oldcastle, who ^""^^' failed to appear to the indictment (if there ever was one against him), was outlawed. According to law, a person who had been indicted for treason, who did not appear, and who had been outlawed, might, if afterwards captured, be sentenced to xhe sentence death as a traitor, and executed without further "''°" *"""■ trial. It was Oldcastle's misfortune to be taken three or four years after his outlawry. The Commons desired that the proceedings relating to Oldcastle in the King's Bench ' 348 A SUSPICION OF FORGERY. [chap. v. should be produced in the House. Certain documents were brought in and read in the presence of Oldcastle himself, against whom judgment was given ' by authority of Parliament, and by virtue of the aforesaid outlawry.' The sentence was that he should be drawn through London to the new gallows in Giles's, and there hanged, and burned hanging. In the Rolls of Parliament a reference is made, not vaguely, to the records of the King's Bench, but to, the Enrolment term and to the very membrane on which the of the pro- ceedings on indictment is to be found ; and the reference the Rolls of Parliament : agrees with the place in which the indictment the dis- ^ ^ crepancies. already described appears. Two copies of the instrument accompany the record of the proceedings in Parliament, but neither of them agrees precisely with the original document in the King's Bench. Neither of them contains the names of the two persons accused with Oldcastle ; and all matter relating to them alone is ex- cluded. In a substantive part of the indictment, too, where the names of Blake and Acton occur in the King's Bench record, without any mention of Oldcastle, the name of Oldcastle alone has been substituted in the Parliamentary transcripts. Thus a document which, as it stands on the King's Bench Roll, affords evidence that the name of Oldcastle was at one time not included among those of the persons indicted becomes in the Parliamentary transcript a record of the indictment of Oldcastle alone. In spite, however, of the grave suspicion suggested by these facts, and in spite of the frequency with which the Forgery or ' I'asing of records ' is mentioned during these carelessness? jj-Qubled times, it would be unjust to assert that any person in Parliament was a party to a forgery. There CHAP, v.] FORGERY NOT QUITE PROVED. 349 is a memorandum appended to the King's Bencli Roll, by which it appears that the Chief Justice himself pro- duced in full Parliament so miuh of the document as referred to Oldcastle. From this it may be inferred that the imperfect transcript in the Rolls of Parliament had at least the official authority of the Court of King's Bench. Nor is there reason to suppose that any alteration except that which gave the whole indictment the appearance of re- ferring to Oldcastle alone — was made after Parliament had asked for the proceedings in the King's Bench. There is ample evidence on another membrane of the roll that Old- castle, with a number of persons accused of being impli- cated in the conspiracy, was outlawed in the second year of the reign of Henry V. — three years before sentence was passed in Parliament. If therefore forgery is to be im- puted, the forger must have been some official connected with the King's Bench, and he must have introduced Oldcastle's name almost immediately after the indictment against Blake and Acton was presented to the court. In almost all rolls, too, it happens sometimes that the marks of erasure are visible In places in which it is im- possible that the eraser can have had any dishonest in- tention, and there remains, therefore, the bare possibility that in this case a careless clerk may have made a mistake, and that a knife may have been used to save labour and parchment. The judge had power to direct sugh altera- tion, if necessary. But, on the other hand, the erasure is of unusual extent, and the rest of the document does not support the theory of a corrected mistake. There has been given in the fourth chapter of this history sufficient evidence to show that it would have been no very difficult task to corrupt an officer of the court ; and when a record of the highest importance bears such marks as the indict- 35° CAUSES OF OLDCASTLES RUIN. [chap, v" ment of Oldcastle, even though we might in charity pro- nounce that forgery is ' not proven,' we should still have to pronounce that there has been carelessness and concealment of carelessness hardly less culpable than forgery itself. At this early period all proceedings in cases of treason were tainted with prejudice, and, according to our modern oidcastie's notions, were violent and unjust. If Oldcastle death not to be attributed Suffered through a forged indictment, others to the clergy *-* ^-^ alone. before and after have suffered in a manner which hardly less deserves reprobation. Nothing could be more unjust than to import the odium theologicum into Old- castle's case, and to represent that he was, so far as the accusation of treason was concerned, an instance of a man condemned by the clerical party contrary to the usages of the time. Parliament, it is true, added the punishment of burning to the punishment of hanging, because Oldcastle had been pronounced guilty of heresy as well as of treason. But when the party in power was convinced that Oldcastle was dangerous to it, his death, in one way or other, was certain, and would have been certain had there been not a single Bishop in the realm. What we have most to regard in this case is not so much the in- dividual as the times. In the preceding chapter it has been shown what moral tone was pervading all classes ; Oidcastie's death was only one out of many illustrations which might be selected. It is our good fortune to live in an age when all classes, clergy and laity alike, have participated in a great improvement. To mark out a particular class as the one scape-goat of the past, would be to show ignorance alike of the causes which made that past what it was, and of the causes which have made this present what it is. It appears by the King's Bench document to which CHAP, v.] OLDCASTLE AND CROMWELL. 351 reference has been made that Walter Blake and Sir Roger Acton were found euilty of treason by iury, Aims of oid- according to the ordinary course, and were and Acton. sentenced to be drawn through London and hanged, where Oldcastle afterwards suffered, at the new gallows in St. Giles's. This spot was selected for the scene of the executions because, according to the accusation, it was in St. Giles's Fields that the conspirators were to have met, and that their forces were to have assembled. Their scheme, according to the indictment, (which seems to be genuine so far as Blake and Acton are concerned,) was to put the king and his brothers to death, and to abolish the royal dignity, to set Oldcastle at the head of affairs with the title of Regent, (which would have been equivalent to President or Protector) to proclaim that there were to be no bishops, and no orders of monks in the land, to force all who had been members of those orders into secular occupations, to destroy all relics in churches or religious houses, and to establish a form of government in accordance with their own opinions. Those who consider how completely this was an antici- pation of what was actually accomplished in the time of Cromwell, and how well it accords with the similar, but less precise demands of Wat Tyler and his fellows, will have little difificulty in believing that there may really have been a conspiracy, even though Oldcastle may not have given his consent. The double punishment of hanging and burning, in- flicted on Oldcastle, is the best illustration in action of the alliance which the clergy had now succeeded in AUianceofthe effecting^ with the upper classes of the laity, the upper . classes of the .Both parties believed that they had a common i^ity. interest in crushing a common enemy. The one resorted 352 HERESY AND WITCHCRAFT. [chap, v to its usual weapon — a charge of treason — the other t( a weapon which it had not hitherto had many occasion; of using in England — a charge of heresy. The effect however, of this alliance was, for a time at least, to plac( two weapons instead of one in the hands of either party A charge of treason could be rendered more formidabh by the addition of a charge of heresy — a charge of heresy by the addition of a charge of treason. Heresy was bj no means strictly defined in any law, and the diocesar appears to have had the power of deciding whether anj particular doctrine was heresy or not. There was alsc an offence falling within ecclesiastical jurisdiction, which if not strictly heresy, was of so heretical a character thai according to some lawyers a writ ' for burning a heretic might issue, at common law, against persons who hac been found guilty of it. This was the offence in whicl: the belief, descending from time immemorial, was noticec in the first chapter of the present history, and which \i specially prominent from the beginning of the fifteenth tc the end of the seventeenth centuries — the offence ol witchcraft. Every one is familiar with stories, which were current in generations not long since passed away, of men and oJ , women who had read more than their neig-h- Charges of o ^d'^'^'^ro-'' bours, who acquired the reputation of students, gracXito lay ^^d who, if they incurred the least unpopularity people. were set down as witches or wizards. In the earlier part of the fifteenth century, when letters were but just reviving, a lay-man or a lay- woman who showed any strong appetite for learning was infinitely more likelj to be an object of suspicion than at the end of the eight teenth. The orthodox clergy, of course, maintained thai the most suspicious form of study which lay people coulc CHAP, v.] JEALOUSY EXCITED BY LEARNING. 353 undertake was that of divinity. The consequence was that the clerical party enlisted as far as they could every knightly prejudice on their side, and represented a thirst for knowledge as essentially unchivalrous. It was easy, too, to foster a belief that no- one could know, or even wish to know, more than his neighbours, except through the influence of the Devil. Oldcastle was one of the very few laymen of the day who had a spirit above this popular prejudice ; and a contemporary song against the Lollards contains an allusion to him which well expresses the dominant sentiment of the age : — I trow there be no knight ahve That would have done- so open shame For that craft to study or strive ; It is no gentlemanne's game. When the jealousy and dread of superior knowledge were prevalent, it was impossible that the hunt for Lollards should not suggest a hunt for sor- connexionbe- cerers. The pestilences, too, which had over- of heresy and T- 1 -11,, charges of run Lurope must have stimulated the sale witchcraft. of charms, and given a new power to quacks of every kind, and to superstition in every form. The reign of Henry IV., remarkable for the burning of Sautre, and writs to arrest heretics, is remarkable also for an attempt to suppress witchcraft. The king had been informed that many sorcerers, magicians, enchanters, necromancers, diviners, and soothsayers, were practising every day their horrible and detestable arts, and causing others to be perverted and brought into ill repute. It was feared that even greater evils might follow unless some remedy were shortly provided. A bishop was therefore re- quired to search for sorcerers within his diocese, and to commit them to prison after conviction, or, should it VOL. I. A A 354 THE MAID OF ORLEANS BURNT. [chap. seem expedient, before, to be kept there until repentani or further orders. The most terrible and the most disgraceful of all ex cutions for witchcraft, though Englishmen had too gre a share in it, was not brought to pass on English so The Maid of '^^^ story of the Maid of Orleans is so w( rieans. known and so painful that it is unnecessary i do more than recapitulate its leading incidents. She w; a simple country girl, the monotony of whose life w£ relieved only by rare converse with a traveller halting ; the remote inn where she served. The great subject ( the day was the misery of France overrun by the Englis] She could talk of little else when any rough wayfare condescended to give her a word ; she could think < nothing else when left to brood by herself. With hature full of affection and energy, she had neither chil nor husband to love, nor any object in life for which sh could work. The whole strength of her character wa forced into two channels — imagination and devotion. T wish France free and Charles on the throne was to see all with her mind's eye ; to kneel down in prayer was t pray for the realisation of the picture. Before long thi mental exaltation found a relief in action. The possibl future, ever present to her mind, needed only a passionat faith in religion to appear an inspiration. The dreamini waitress and stable-girl became a prophetess and a heroine Her belief gave her strength to wear a man's armour an( do more than a man's deeds of arms. She showed to al posterity a proof that a firm purpose, supported by ai undoubting trust in the future, is of almost unlimitei power. Strong warriors fell before her as though the- had been babes ; the appearance of her banner was th^ signal for a rout ; and ere many weeks had passed she sa-v CHAP, v.] PERSECUTION OF WITCHES. 355 her dreams converted into facts by the coronation of Charles, as king of France, at Rheims. It was her mis- fortune afterwards to be captured by a Burgundian force. She was sold to the English — for prisoners of war were not uncommonly regarded as articles of commerce in the days of chivalry — and, while in their hands, she was tried for heresy and witchcraft. An ecclesiastical tribunal, composed chiefly of Frenchmen, was brought together, and pronounced that her victorious standard had gained some magical force through her incantations, and that her inspiration was from the Devil. She was thrown into prison, and afterwards, on pretence that she had recanted and again fallen into her evil ways, she was burnt alive in the market-place of Rouen. A few months after the execution of Joan of Arc, in France, when the young Henry VI. was in the tenth year of his reign, his Council was devoting consider- search for 11 • -1 r-T^iiA • sorcerers in able attention to witchcraft in lingland. A writ England, issued for the arrest of Thomas Northfeld, a member of the order of Preachers in Worcester, and a Professor of Divinity, who was to be brought before the King's Council, together with all suspected matter belonging to him, and especially his books which treated of sorcery. In the same year, one Margery Jourdemayn, together with a clerk and a friar, were brought before the Council, which decreed that the two latter might be released from prison on finding sufficient bail for their future good be- haviour, and Margery also, provided her husband would be her surety. There is also every reason to believe that, although the extreme penalty may have been rarely exacted, there was for many years a species of crusade against persons suspected of practising the forbidden arts, who no doubt had but an ill time among their neighbours, A A 2 356 A DUCHESS OF GLOUCESTER [chap v. even if they were not brought into a secular or eccle- siastical court. Ten years after the accusation against Margery Jourdemayn, it appears that the king gave a warrant to the Treasurer for the distribution of rewards among those doctors, notaries, and clerks who were exerting themselves for the destruction of ' the super- stitious sect of necromancers, enchanters, and sorcerers.' At this time, too, just before the Wars of the Roses, the charge of witchcraft became, like the charge of The charge heresy, a political engine. One of the most asa'p'ilScal distinguished sufferers was the Duchess of Duchess of Gloucester, whose husband had been appointed one of the guardians of the realm upon the ac- cession of the child-king, Henry VI. After the death of the joint guardian, the Duke of Bedford, the Duke of Gloucester occupied the highest position in the kingdom next to that of the imbecile youth who occupied the throne. The chief competitor for powef, in opposition to the Duke, was Cardinal Beaufort, bishop of Winchester, to whom the person and education of the young king' had been entrusted at the beginning of the reign. The clerical party, of which the Cardinal was the head, re- solved to strike a blow at their enemy through his wife. The Duchess was seized at Leeds and thrown into prison ; and she was afterwards brought up to London to take her trial for witchcraft. The prelates who were to conduct the exatnination sat in St. Stephen's Chapel at Westminster. They were Cardinal Beaufort, Cardinal Kempe, five bishops, and other clerical dignitaries ; and the king himself was present. The Duchess was led into the chapel, and formally accused of having consorted with that Margery Jourdemayn whose name has already been CHAP, v.] DOES PENANCE FOR WITCHCRAFT. 357 mentioned (and who was known as the Witch of Eye), as well as with other sorcerers. By. their aid, it was said, a waxen image of the king had been made, which the Duchess had set before a fire, so that it might gradually melt away. Incantations had been used for the purpose of connecting the melting image with the living king — so that as the one slowly lost its form and likeness to humanity, the other might sink slowly into the grave. The sense of humour must have been strangely wanting in the august assembly which sat to investigate this charge. Not one of the whole number seems to have been struck with the incongruity of a king and the most powerful of his spiritual advisers sitting solemnly in a consecrated building, of which the name was famous, to ascertain whether a great lady and a silly woman had or had not — melted a piece of wax. It need hardly be said that the Duchess was found guilty. Her husband's political opponents would have had her executed after the manner of heretics. Her con- but the young king, now arrived at manhood, and penance. had sufficient good feeling to save her life. She was in- duced to confess, and condemned to a penance which could hardly have inflicted less torture on her than burn- ing itself, and was no doubt devised chiefly for the humiliation of her husband. It seems to have made a profound impression upon the populace ; and in one of the songs of the period she is made to bewail her fall, and to tell the whole story of her punishment : — Thorough London in many a street Of them that were most principal, I went barefoot upon my feet That some time wont to ride royal. Father of Heaven, and Lord of all. As thou wilt so must it be ; The syn of pride will have a fall ; All women may be ware by me. 3S8 A DUCHESS OF BEDFORD AND [chap. v. After walking through the streets to be jeered by such a mob as was the mob of London in the fifteenth century, she was carried off to the Isle of Man, there to pass the rest of her days in prison. The Witch of Eye was burnt in Smithfield, and a male sorcerer was hanged at Tyburn. Charges of witchcraft, once having taken their place among the engines of political warfare, did not, during The Duchess ^^ Wars of the Roses, stop short of the royal and htr""^ household, or even of kings. Edward of York ^^„"eS"=^ having, by the aid of that Earl of Warwick suspreted of "who was afterwards known as the king-maker, wc crat. driven Henry VI. from the throne and seated himself upon it, by the title of Edward IV., was betrayed into an act of great imprudence. At the very time when his chief supporter was negotiating for him a marriage with a princess of Savoy, a sister of the Queen of France, he hastily married a lady who, though of gentle blood, was in no sense a fitting mate for the King of England. She was the daughter of a small landowner or knight, named Woodville, and she had married another small landowner or knight, named Gray, who had fought on the side of the Lancastrians against Edward, had been killed in battle, and had left her a widow with a family of young children. Her mother, however, had more pre- tensions to princely rank, but had descended from it in marrying Woodville. Jacquette of Luxembourg had married that Duke of Bedford who had been joint Guardian of the Realm with Gloucester upon the acces- sion of Henry VI. After the death of her first husband, she appears to have preferred love to position, and thus became the mother of one queen, the grandmother of another, and the great grandmother of Henry VIII., the second king of the Tudor line. CHAP. V.J A QUEEN SUSPECTED OF WITCHCRAFT. 359 In modern times the marriage of Edward IV. — a notorious libertine — to Elizabeth Gray would have been attributed to infatuation ; in the fifteenth century men went farther, and attributed infatuation to witchcraft. The king, who had many enemies before, made enemies of his best friends in taking John Gray's widow to wife. Rumours were soon spread by them that, whatever the queen might be, her mother at least must be a witch. As the silly story passed from mouth to mouth, it caused the Duchess of Bedford an alarm which — with the fate of the Duchess of Gloucester in her recollection — was by no means groundless. She took a course which, how- ever ludicrous it may appear in our time, was perhaps, in those days that which wisdom would pronounce the Safest. She ascertained the names of some of the persons who had been maligning her, and prayed that they might be called to answer before the Great Council. She com- plained that three images of lead, of the length of a man's finger, had been shown from hand to hand as the instru- ments of her sorcery. One of them, it was said, was in the likeness of the king, another of the queen ; and it was no doubt insinuated that the influence which the queen retained over him, after his passion might have been expected to die out, was due to magical arts. The first act of the men required to exculpate themselves before the Council was to deny that they had ever said a word to incriminate the Duchess. An image, it was- admitted, had been handed about, but the Duchess's name had not been mentioned in connection with it ; and one man went so far as to add that he had ' never heard no witchcraft of my Lady of Bedford.' Upon this, the Council pronounced that she was cleared of suspicion. On her petition it was commanded that the proceedings 36o BURDETT AND CLARENCE. [chap. v. should be ' enacted of record,' sO that the decision might be of use at any future time. Yet had she known past history or her own age, she might have foreseen that all her precautions would be of no avail, should she ever be without a powerful protector. When Edward IV. was dead, and the Lords and Commons offered the throne to the ' Most High and Mighty Prince, Richard, Duke of Gloucester,' they gave not a thought to what had gone before. They declared that the pretended marriage between King Edward and Elizabeth Gray was ' made by means of sorcery and witchcraft, committed by Elizabeth and her mother, Jacquette, Duchess of Bedford, as the common opinion of the people and the public voice and fame is through all this land.' Towards the end of the reign of Edward IV. and immediately after his death, accusations and counter- charge of accusations of witchcraft, or of similar mal- witchcraft . • against practices, were the common weapons both of Thomas . . ^ Burdett. the court and of its adversaries. It has com- monly been represented that Thomas Burdett suffered as a traitor because, when he heard that a favourite white buck of his was killed, while the king was hunting in his park, he had petulantly expressed a wish that the buck had been in the king's belly — horns and all. In the indictment which remains of record there is no men- tion of the buck or of its horns, nor of anything which can refer to this story, except, perhaps, the charge that Burdett disseminated seditious rhymes and ballads, com- posed with the intention of drawing away from the king the love of his subjects. A deer-hunt was, probably enough, the theme of many a song which may have given offence at court. But the charge actually made against Burdett in the King's Bench was. that he trea- CHAP, v.] EDWARD IV. SUSPECTED OF WITCHCRAFT. 361 sonably imagined and compassed the death of the king, with the assistance of one John Stacey and oi\e Thomas Blake. These two men, it was alleged, in order to carry the traitorous intention into effect, worked and calculated by art magic, necromancy, and astronomy, the final destruction of the King and Prince of Wales. They treasonably revealed to other persons the result of their calculations and devices, which was that both the king and the Prince must shortly die. It is further stated in the indictment that, according to the determination of Holy Church, and the opinions of divers doctors, it is forbidden to any liege-man thus to meddle concerning kings and princes, by calculating their nativities without their permission. The three were found guilty. Blake obtained a pardon through the intercession of the Bishop of Norwich ; but the other two underwent the hideous sentence passed in those days upon traitors. Closely connected with the charges against Burdett were the charges soon afterwards made against George, Duke of Clarence. In the attainder passed ^,_ , , , >■ The duke of against him, it is allegfed that he had accused ciarence o ' o charged with the king of injustice in bringing a false accusa- puted^,ji™h- tion against Burdett, and in securing a convic- Edwarf iv. tion by bribing servants and others to divulge *"™^^"^' pretended conversations of a treasonable nature. But the most remarkable part of the bill is that in which he is accused of having imputed necromancy to the king. Not only, according to this document, had Clarence said that Edward removed by poison those whom he could not destroy by law, but that he reached by witchcraft those whom he could not reach by poison, and caused the Duke himself to waste away as a candle is consumed in burning. There is a well-known story 362 JANE SHORE. [chap. v. in the chroniclers that Clarence was permitted by the king to select his own mode of death, and that he was drowned in a butt of malmsey. Whatever may have been the end of Clarence, there seems to be no doubt that, unlike that of most so-called Accusation traitors, it was not by public execution — a ag^nstjlne remarkable exception in an age when the pub- licity of an execution was secured by distri- buting pieces of the traitor's body throughout the kingdom, and when every punishment consisted, in part at least, of exposure to the insults of a brutal crowd. It was no doubt through some remains of interest at court, or through the king's sense of the dignity of the blood-royal, that the Duke obtained the favour. After the death of Edward, not even his mistress could save herself from the ignominy of being jeered by the mob. Jane Shore was the last of the principal actors in the series of trials connected with witchcraft, which are a conspicuous feature of the disputes between the Houses of York and Lan- caster, and of the quarrels between the members of either House. This unfortunate woman, who seems to have committed no crime, except obedience to the will of a licentious and tyrannical king, was summoned, at the instance of Richard HI., to answer the accusation of sorcery. For some reasons, which it is unnecessary to investigate, the proceedings were not carried out to the usual conclusion, and Jane was tried in an eccle- siastical court for adultery and lewd behaviour, which it was easy enough to prove against her. She was pro- nounced guilty, and condemned to do public penance — walking through the streets barefoot, and carrying a lighted taper. We can, perhaps, imagine what would be the sufferings of any city dame condemned to be the CHAP, v.] WITCHCRAFT AND PRINTING. 36s laughing-stock of a London crowd in our time. But this would be nothing to the treatment which would, in the fifteenth century, have befallen a royal paramour set up as a show at St. Paul's, even when she attracted, as it seems Jane Shore did, the sympathy of some spectators. Of all the strange coincidences and apparent con- tradictions which present themselves in history, none seem, at the first glance, so strange as the . => ' o A strange coincidence that the belief in Witchcraft comes p°>nciderice : introduction into the most marked prominence at the very "[^"jjj,'"^ time which is remarkable also for the introduc- ^^fons oT tion of Printing. While contemplating the becamrmoEt effects of a delusion which evinces the darkest p™"""^" ■ ignorance, we are suddenly dazzled by the appearance of an art which we are in the habit of associating with the greatest enlightenment. How can such a contrast have been brought to pass ? Is learning powerless to eradicate superstition ? Are human affairs a medley in which everything is to be attributed to chance and nothing to law, and of which the component elements change their nature and re-distribute themselves by caprice ? To such questions as these there is a suflficient answer in the surrounding circumstances of the period under consideration, and in the very means by Attempt to - . . . - - explain the which the art of prmtmg was mvented and set contrast: the towns and in use. The forces which had been at work the country. for centuries had for centuries been opposed to one another. On the one hand the spirit of private war had been arming baron against baron — one body of retainers against another ; on the other hand the spirit of com- merce and the spirit of invention had been slowly ac- quiring strength in the towns, though checked by the barbarism which continued to exist both within and with- 364 SEALING AND PRINTING. [chap. v. out the walls. Edward IV., made king by the aid of a baron king-maker, accused and accusing others of witch- craft, and yet becoming the patron of Caxton, was but the head of a nation which as yet hardly deserved the name, and in which widely different interests produced contrasts even greater than those which are produced by a more complex civilisation. In order, however, to estimate correctly the progress indicated by the invention of the art of printing, which. Degree of from its after effects, is apt to excite unbounded progress indicated by admiration, an attempt must be made to under- the invention ^ of printing, stand the condition of certain other arts at the time when the inventor or inventors lived. We shall then perceive that the amount of ingenuity required is by no means in proportion to the value of the results by which the introduction of the new art was followed. In almost all essential points, printing is identical with an invention of which the origin is lost in remote antiquity. No nation which was in any way brought into contact with the ancient Roman civilisation could long be ignorant of the construction and use of the seal. A seal is neither more nor less than stereotype used for the purpose of printing on wax. Such an instrument was in the posses- sion of every land-holder and of every corporation in England, centuries before the adaptation of an old device to a new material and for a new purpose. Nor is the connecting link between the ancient seal and the type, consisting of moveable letters, like some of the con- necting links for which naturalists have sought in vain, a mere matter of inference. The earliest attempt to print was made by means of a block, or, in other words, of a page of type in which the individual letters could not be moved. This was simply a large seal, from which an CHAP, v.] MANUFACTURE OF PAPER. 365 impression was taken by means of ink, instead of by in- dentation upon a soft material like wax. The blocks, though clumsy, might long have sufficed for such printing as was required, when there was little desire to read any books, except now and then a romance, or a controversial treatise on divinity, and when the expense of parchment was an effectual check upon the multiplication of copies, had not paper of a fine texture ceased to be a too expen- sive substitute for skins. At the end of the fourteenth century there was, in Europe, sufficient commercial enterprise and sufficient mechanical skill to produce a linen-paper, of j^p^^^^^^^^ whicTi even a modern printer might avail him- J^ctoJof™ self There seems to be no doubt that in the ^^^''^' earlier part of the same century paper was sometimes made from cotton, that there was then made the first rude attempt to manufacture it from linen rags, and that a few years sufficed to render the new art of practical value. As commerce increased, and deeds grew more numerous, and records multiplied, the demand for parchment became far stronger than it had been in earlier times ; and, as the supply was limited, the price necessarily rose. The in- convenience must have been very great, and have given a strong impulse to the inventive powers of the towns- men who had been the chief causes of it. The activity of the towns and many features of their internal con- dition are most opportunely brought into prominence by writs sent out, in conformity with an order of Parliament, in the year 1388, and by the returns in which the various guilds set forth their ordinances. The dearness of skins prepared for writing (which the ancient palimpsests show to have been not altogether a recent annoyance) and the slowly growing competition of paper, find more than one 366 PAPER AND PARCHMENT. [chap. v. curious illustration in these documents. The ordinances of the Guild of Saddlers and Spurriers at Norwich are written on a piece of vellum which has once served as two leaves of a book. Lines had been ruled on each side of each page, and the holes made for the thread, in binding, tell, like the lines, the past history of the skin. When the clerk of the guild had to prepare the return, he flattened out the fold which made the division between the two leaves, disregarded the damage done by the binder, and wrote across the ruled lines, just as though they had had no existence, and he had been dealing with a new skin. When such parsimony as this is apparent on the face of a parliamentary return, it is not surprising to discover that the regulations of another guild had been, a few years earlier, written on paper. But, perhaps, the most striking evidence of the attention now excited by the want of materials for writing exists in the original writs sent to the guilds after the order had been made in Parliament. Many of them, though seeming at first sight to be written on parchment, are pronounced by experts to be written on linen-paper, with the wire marks plainly visible upon close inspection. It is by no means impossible that some fraudulent dealer in parchment may have deceived the clerks of the Chancery with spurious wares ; but, whatever the true explanation may be, the use of paper with the apparent sanction of legal officials is a matter of some importance. Step by step with the advance of commerce and of , business in the law courts, the art of writing Paper a sub- ^ 'arctaenf ^'^^^ progress amoug the higher classes. If 'comspon- ^^ d'^i '^^^ know what was the state of society '^^"''^' in the middle of the fourteenth century, we might have some difficulty in understanding how it CHAP, v.] PEN, SEAL, AND TYPE. 367 came to pass that no king of the French line, before Richard II., is known to have written so much as his own name. It is possible, indeed, that sonie of his pre- decessors were not absolutely unable to form a letter, and that ancient custom alone forbade the sovereign to make a signature in the modern sense of the term. Still there could hardly be a better sign of the times than the abandonment of this ancient prejudice and the substitu- tion of a name for a cross. The influence of the royal example was widely felt, and families of position began to perceive that correspondence between their members would not be degrading, even though each correspondent might have to use the pen with his own hand. Letters written soon after this time are still extant, and suggest yet another cause for the increasing dearness of parch- ment and the increasing demand for paper. Not the least curious among the curious movements which followed the Black Death, within a century and a half, is the interchange of uses between writing interchange of uses be- and sealingf, stampmg, or printmg. On the one tween the hand penmanship was beginning to show that seal. it would, sooner or later, take the place of the seal in various transactions between man and man ; on the other hand the seal was, so to speak, taken to pieces, and each piece, consisting of a single letter, was used in endless combinations to make an impression with ink upon paper, and so to multiply the books which could previously be multiplied only by the scribe. The impression of the seal upon wax, long afterwards a necessary appendage to all documents which were to be produced in a court of law, was at first equivalent to a modern signing of the name ; it was supposed to be a proof that the owner of the seal had set his hand to a deed or writing in token of approval. 368 WRITING, PRINTING, AND FORGERY, [chap. v. So far was this doctrine carried that the ancient felony which corresponds to our forgery could not be Writing coRimitted with the pen, nor, in any way, with- seau'ngf'and ^^^ a Counterfeit seal. There are numerous orgeiy. records which show that even to fabricate writs was no felony unless the seal was counterfeited. To heat a knife in the fire, cut through a seal (made of beeswax), substitute a false writ for the true one, and attach the real seal to the false writ was a very common practice ; but the offence was held to be no more than a trespass. In the reign of Henry IV. a man was accused of having counterfeited the Great Seal. This was High Treason. The jury, however, found that the Seal had not been counterfeited, but that the impression, which had belonged to a genuine document, had been removed and made to serve for a document which was spurious. . The magnitude of the crime rendered the judges anxious to awafd the criminal a fitting punishment, and, after some delay, they declared that Treason had been com- mitted, and passed the usual sentence. But the lawyers of a later time have not been satisfied with this judgment, for which there is no warrant in the Statute of Treasons ; and there can be little doubt that, according to the strict letter of the law, the offence which had been cortimitted was not capital. There was thus a great want of pre- cision in the definition of a crime which was one of the most prevalent in that age. The subsequent improve- ment in manners, and the spread of education to which printing has greatly contributed, have had the effect not, as might have been feared, of increasing the number of forgers with the number of persons able to write, but of checking forgery by rendering detection easy; and sharpen- ing the wits of lawgivers and judgesi CHAP, v.] PAPER, PRINTING AND COMMERCE. 369 The introduction of paper no doubt helped to extend the art of writing-, just as the art of writing helped to extend the demand for paper ; and thus, when some skill had been attained in paper-making, there existed the only two incentives required for the development of the art of printing — a nascent love of letters, and a material on which books could be printed more cheaply than on parchment. The coincidences of time are very striking. Good paper was first made during the reign of the first English king who signed his own name, and from that time only half a centui-y was required for the ancient seal, which had been unchanged for ages, to be developed into the printing-block, and the printing-block into moveable types. The honour of this adaptation, like that of most adaptations, is claimed by rival nations. It does not, however, like that of most mechanical inventions, belong to England ; but the new art was introduced into Eng- land by Caxton during the reign of Edward IV. A plain statement of preceding events greatly di- minishes the wonder at first excited by the appearance of Caxton during the Wars of the Roses, and when the belief in Witchcraft was at its heieht. ™™' °f o paper, a The invention of printing was not very mar- of printing"" vellous at the time, and its possible effects were spirifo*^ not manifest for many a generation afterwards. '=°"""^™- Real changes in the manners of mankind are rarely effected at one stroke, either by a new law or by a new invention ; and had not the same causes which brought the first printed book into existence gained new strength with every generation, it is possible that even the art of printing might have languished for want of support, and that the printing-press might long have remained a mere curiosity, like the balloon or the electrical engine. It VOL. I. B B The improve- ment of paper, and 370 COMMERCE AND PRIVATE WAR. [chap. v. was the comtnerctal spirit which had rendered printing possible. It was the commercial spirit which introduced printing into England ; for Caxton was early in life a member of the Mercers' Company in London, and was afterwards, from his knowledge of mercantile affairs, commissioned by Edward IV. to negotiate a treaty with the Duke of Burgundy. The commercial spirit, also, by fostering all the other arts, fostered the tastes and the culture upon which the art of printing depended, or, in other words, which created the demand for printed books. Bishops and barons had for centuries been op- posed to any innovation — the one class content with its own superior but limited knowledge, the other with its own rude courage and dense ignorance ; and so the barons and the bishops might have gone on for centuries more, had they not had new stores of learning forced upon them by the burghers. The first use of the printing-press in England may be taken to mark the time at which the commercial spirit The com- had SO- far gained upon its old enemy that it mercial spirit . ... ... and the spirit could conteud on equal terjais with the military ofprivate . . ^ . i • i i . . ^ . war. spirit oi the worst kind — the spirit of private war. The contempt — even now by no means extinct — which the land-holders had always felt for the towns-men, was somewhat mitigated — as contempt always is — ^by the success of the persons despised. King Edward IV. not only patronised Caxton and gave his countenance to traders, but, as was whispered, condescended to in- crease his revenue by commercial ventures of his own. The burgher might hope that he would one day be able to hold up his head and claim equality with the descendants of the men who had perhaps owned his forefathers as slaves. One of the most powerful families CHAP, v.] KNIGHTS AND BURGHERS. 371 in England, indeed, had already been founded by that Michael de la Pole who had been created Earl of Suf- folk, had held the office of Chancellor under Richard II., and had been but the son of a rich merchant — lender of money to Edward III. Prejudice in the country against the towns, and pre- judice in the towns against the country (beginning, perhaps, in the remote past, when some bar- country barian horde had starved a city into submission, "wn*^"' ^""^ and 'had treated with contumely the citizens whom they had robbed), had been perpetuated by diver- sity of interests and habits. The burgher, with some justice, regarded the iknight as a brigand ; the knight, not altogether without reason, regarded the burgher as a cheat. Had the knight possessed a monopoly of honesty, he might with a better grace have denounced the burgher as a contemptible seeker after the filthiest of lucre. Had he had no beam in his own eye, his opinion upon the mote in the eye of the burgher might have been a little more worthy of attention. But those among the burghers who had some of the instincts of thieves were loth to acknowledge the truth of reproaches from gentle- men who had some of the instincts of robbers. It must be confessed, however, that the dishonesty which showed itself every day during the growth of English commerce might justly have been termed .^^^ ^^^ ^^^ shameful by any one but a brigand. The knight ag^^if°the or the lord sent to the markets at Bristol or '°"'"'™^°- Gloucester for cloth to make the uniforms of his little army of retainers. The outside appeared to be all that was needed, but as soon as the piece was unrolled the greater part of it was found to be made of inferior wool, to be deficient in breadth, or even to be of different B B 2 372 FRAUDS OF THE FIFTEENTH CENTURY, [chap. v. colours. He bought rings and beads for his mistress, a pommel for his sword, cups with covers to set on his table, and candlesticks to adorn his hall, believing them to be made of gold or of silver ; but that which he thought was gold was gilded copper, and that which he thought was silver was silvered latten or brass. He laid down in his cellar what a merchant had said was a tun of wine, but he was defrauded in the measure, of many a gallon. He stocked his larder with salted herrings, salted salmon, and salted eels to last through the winter ; and when the barrels were opened they were seen to contain a few good fish at the top and a number of broken and inferior fish below. He went abroad as ambassador to a foreign court and had to hear complaint after complaint that his fellow-countrymen had exported wool of less weight and of worse quality than the purchaser had contracted to receive, and that no man knew what he was buying when he bought the worsted of Norfolk. When the envoy returned, it was only to hear that smugglers were every day evading the export duties on wools and woolfells, and the import duties upon such luxuries as cloth of silver or gold, velvet, silk, and damask. The very money due to him he could not safely accept until he had complied with a statute which declared the ill-repute of the current coin by the provision that all payments in gold must be made by weight. It is not surprising that he should then have retired to his country-seat and waited among his flocks, and his herds, and his game, until he could find employment for his lance and his charger. Thus the sins of individuals were attributed to a class, and townsman remained an epithet of contempt or ridicule long after townsmen had become free and rich. The burgher turned gentleman was destined to be one CHAP, v.] TOWN AND COUNTRY. 373 of the fittest subjects for a comedy as soon as comedy revived, and is even now a subject from which it is easy to raise a laugh ! Yet in the days when ^.^e social Rome was mistress of the world, town life was ^wn^andT^"^ believed to make the gentleman, and the rustic '^°™"'^- was commonly represented as a boor, so stupid that he would watch on the banks of the river in the hope of seeing all the water flow away and of walking across the bed left dry. Never was joke more grimly thrown back against the joker than when robber hordes dismembered the Roman Empire, possessed themselves of the towns, and declared themselves to be the most noble and honour- able persons on the earth. In the present day gentlemen do not, as they did in the fifteenth century, think it beneath their dignity to dwell in a city ; but even in the present day it is not difficult to trace many sQcial distinctions to the ancient feud between citizen and knight. We have, however, the good fortune to live in an age when men of leisure are no longer brigands, and when, instead .of seizing the wares and the coin of traders, they appropriate only the greatest share of that polish which town-life gives, and of which but little falls to the lot of the busy trader who created it. To one who asks how the successor of the brutal marauder became an accomplished gentleman, there is but one answer. Save in one point — that dignity ah mental r , . 1-111 11 culture traced 01 bearing which has been remarked even among to the towns. savages who have been accustomed to command — ■ it is the townsman who has made the gentleman what he is. If the gentleman has a taste for architecture, the architecture is itself the product of town-life. The towns directly or indirectly found the wealth to bring the materials together ; the architect himself was commonly 374 CULTURE BORN IN THE TOWNS. [chap. v. a townsman— the offspring of a villein who had run away from his lord. If the gentleman has a taste for painting, his taste comes from the same source as his taste for architecture. The very demand, created by the Church, for architects and painters, during the Middle Ages, was but a reminiscence of the old Roman culture, which had to some extent affected the professors of the Christian religion, and which had grown out of the love of the Romans for the life of the town. In the monasteries, where some monks were taught Latin and writing, the knowledge which was cultivated was but a slender relic of the knowledge once cultivated in the Imperial City. Scarcely an art can be mentioned which has not had its origin in town-life, which has not come to us immediately from towns comparatively modern, or through the Church from the towns of antiquity. All that trains the eye to appreciate new combinations of form and colour, all that gives the intellect strength, all that gives urbanity to manners, can be traced through one channel or another to the association of men in towns. The very wealth which constitutes one of the distinctions between the civilised and the barbarous is the growth of the towns, and not least the growth of the towns when it takes the form of an increase in the value of land. A plentiful harvest is garnered not less by the wits of the townsman than by the hands of the ploughman, the sower, and the reaper ; and the farmer has to confess, year by year, new obligations to the mechanic. While, therefore, it is not difficult to sympathise with the knight who, looking at the townsman in only one aspect, proclaimed him to be a cheat, it is impossible not to sympathise with the townsman who broke through the barriers of caste, and civilised the knight in spite of him- CHAP v.] FEOGHESS FROM AGE TO AGE. 37S self. We have seen how fraud and force went hand in hand in the early days of commerce, how commerce had to struggle against the lawless spirit of the brigand, how dishonesty within the walls was but the counterpart of robbery without. Yet the very existence of laws and bye-laws for the suppression of roguery and violence shows that there were at a very early period some knights who were not at heart highwaymen and some traders who were not at heart thieves. In every age there are some men who are a little better than their fellows ; and their excellence, when circumstances are favourable, is but the mediocrity of a later time, the beginning of a series of steps towards improvement. As Oldcastle was a gentle- man who did not despise learning, so we may believe there were merchants who did not despise honesty. There is nothing, indeed, of which we may be more certain ; for, had deception been the one essential feature of trade, it would have been impossible to create that con- fidence between man and man upon which trade depends for its existence. But though we of the nineteenth cen- tury are better able to judge what has been done for the world by towns, and manufactures, and inventions, we may, perhaps, spare a little compassion for some rude old knight, of the fifteenth, whose lot it was to hear, time after time, that the useful son of his hereditary slave had had the spirit to wander away in search of freedom, and afterwards that the runaway was growing rich in a char- tered town. He believed, no doubt, that the world was -coming to an end, that virtue in every shape was dying out, and that when a landowner could not retain possession of his own ' natives ' there was an end to all the laws of property. Who cannot imagine the spleen with which he would denounce the changes going on around him, and 376 VILLEINS AND TOWNSMEN. [chap. v. the strong epithets he would apply to the fugitives and to the men who sheltered them ? He has, indeed, made the English language bear testimony to his indignation,- for when he most wished to describe the townsman as capable of everything base and of everything underhand — as a liar after the fashion of all slaves, as a thief by the very act which stole a human body from its lawful master, and converted it into a citizen — he could think of no more comprehensive term than — villain. If it be asked how the towns could have gained power, and how commerce could have grown during The towns ^uch a lawless period as that in which the Wars fugitivlvii- of the Roses were fought out, an obvious answer presents itself. The Wars of the Roses, though brought into greater prominence by historians, could hardly have been more injurious to the country than those civil wars on a smaller scale, which knight had for centuries been waging against knight, and baron against baron. It matters little whether peace is dis- turbed in order to raise one king and overthrow another, or in order to settle the claim to a manor or an honour. The service and the sentiments of the retainer were the same in each case. He fought for the lands of his lord or of his lord's enemy, because his lord commanded him ; and, because his lord commanded him, he fought for Henry of Lancaster or Edward of York. During these greater civil wars, however, the disorganisation which fol- lowed the Black Death was slowly but continuously giving aid to the towns. Many villeins, no doubt, sought their fortunes within the walls immediately after the pes- tilence, many after the tumults of which Wat Tyler's rebellion is the best known example, still more, perhaps, as single fugitives year by year when opportunity offered CHAP, v.] CHANGES IN THE TRADE-GUILDS. 377 and highly coloured accounts were brought to the bonds- men of the freedom which the towns were offering as a gift. For generations the towns had been, to all the dis- contented rustics, what the Cave of Adullam and the strongholds of En-gedi were to David and those men in distress who appointed him their captain. It is no wonder that when youthful deserters from the manor and its bondage came, full of energy, to the towns, the towns grew stronger in population and in enterprise ; still less is it a wonder that when the older inhabitants were con- tinually admitting men who began life as outcasts, the outcasts did not become all at once the most honest of mankind. The marvel is that the townsmen were able to hold together as a class, that their very existence was not ended by the mutinous spirit of the new-comers, and that under such disadvantages they succeeded at last in giving us the splendid civilisation which we now enjoy. Towards this result it may well be believed that the guilds contributed, not a little in their day. As a recruit soon learns to be proud of his regiment, a run- ^he Trade- away villein soon learned to be proud of his ^^^^^'^°^' guild, or to have a fellow feeling with his s^'^'^^-"'^"- fellow workmen. This sentiment was strengthened by his inherited animosity against the landholder ; and he was, no doubt, soon taught to be as good a citizen as his older neighbour. In very early times, if Glanville is to be trusted, a runaway from the country might hope to be admitted within that highest of all guilds, which appears to be closely connected, if not absolutely identical, with the guild merchant, and was in fact the corporation or governing body of the town. Somewhat later he might, if he failed in this, hope at least to be enrolled in 378 EARLY RELATIONS OF [chap. v. • some craft-guild, as a goldsmith, a spurrier, a tailor, a saddler, or a workman in one of the other trades which were growing in number and in importance. As a guilds-man of the latter kind, he would apparently have been in a position somewhat like that of a modern work- man who works not for a master but for his own profit, and who might be fairly called a small tradesman. The object of the craft-guild was to protect such workers against the competition of persons who were not mem- bers, just as one object of the guild recognised in the earliest charters was to secure collectively as great a monopoly as possible for the particular town in which it was established. It was not founded, like modern trades- unions, to assert the rights of labour against capital, but to keep the market for the goods supplied by its members to those members exclusively. As, however, capital gradually increased, a new phase of society presented itself The craft-guild became powerless and even meaningless, so far as the mere workman was concerned, and useful only to his employer. The City companies, famous for the banners which they exhibit on the 9th of November, and for their hospitality at other seasons, are the nearest modern equivalents of the ancient craft- guilds. They have, it is almost needless to remark, little in common with those combinations of craftsmen which have become prominent in the nineteenth century. In the time of Edward IV., one branch of industry at least had advanced so far that a new comer could not Employers hope to participate at once in the privileges of ployed : their the guild, and must have been content to work early rela- tions, for the wages offered by an employer of labour. Three hundred years earlier, the guilds of weavers in the various towns were composed, it may be believed, of men CHAP, v.] CAPITAL AND LABOUR. 379 who worked with their own hands, sold what they had made for their own benefit, and met together on equal terms. But before the Wars of the Roses were ended capital had asserted its power in a manner which must have been more irritating to the unmoneyed workman than its mode of operation in the present day. The present mode of paying wages was that which the workman then regarded as a possible improvement in his condition. Partly, perhaps, because coin was scarce and of uncertain value, and partly because old customs are but slowly changed, the earlier capitalists paid their men half in coin and half in the produce of the men's labour. This prac- tice was considered a great hardship ; and if the employer set on his goods a price higher than they would command in the market, the employed must necessarily have been sufferers. Whenever there is a grievance, it is supposed to be of recent origin by the persons aggrieved, who picture to themselves a happy time when such things were not permitted, and see in the past more than all they hope to gain in the future. So the working men of the fifteenth century believed that their forefathers lived in an age when employment and money were to be had for the asking, just as the villeins believed Domesday Book would show that their ancestors had all been free. Yet it is not difficult to perceive that a guilds-man who had saved a few pounds would be glad to employ some less fortunate weaver, who would be content to work for the privilege of selling a portion of the cloth he helped to make. This is the beginning of the distinction between employer and employed. It is, of course, capable of any extension ; and a guilds-man would naturally assume the power of giving work to a subordinate who was not a member of a guild. Thus the provident guilds-man 38o BEGINNINGS OF MODERN S0CIETY1 [chap. v. was developed into the manufacturer, his poorer or less thrifty brother into the mere 'hand' ; but the latter passed through an intermediate stage when he was half working- man and half retail dealer. Of his own free will he elected to be wholly working-man, and there can be little doubt that when he made the choice he was the best judge of what would be to his own interest. The time at which printing was introduced into England, remarkable for other coincidences, is remark- New group- ^^^^ ^1^° ^^ the time at which classes began ing of classes. ^^ -^^ grouped anew, and to show, as a whole, some indication of the shape which they were to take in later times. While villenage was being extinguished, partly through the action of the villeins themselves, partly through the preaching of the Lollards, and partly through the assistance of the towns, there began to be a new relation established between man and man. In previous times, when wealth had been amassed in trade, it had been amassed by the ship-owner and the money- lender ; it now began to be amassed by the employer of labour in new and extended fields of industry. Not only the master cloth-weavers but the -owners of mines were becoming sufficiently prosperous to find that there were difficulties in dealing with large bodies of workmen who demanded payment in coin alone. In other branches of commerce Englishmen began to feel that they need not be wholly dependent on imports for a supply, and their native genius began so far to display itself that they even succeeded in establishing an export trade in guns. Not the least curious feature in the history of our towns during-this period is the persistence of the guild social or religious in its old form and in full vitality, while the craft -guild, though still existing, was losing its CHAP, v.] EFFECTS OF. SOCIAL GUILDS. 381 original character and showing signs of old age. Refer- ence has already been made to the ordinances of various g-uilds returned to Parliament in the year i ^88. „, ,. , o J sj The religious Later records show not only that the social or °uiid°'^.'''their religious guilds continued to be an important earuer and element in town life, but that they were sufifi- '^""' '™^'- ciently popular to obtain new endowments and a new constitution as late as the latter half of the fifteenth century. Though there was much in their traditions which was evil, there was much in their practice which was good. They are a connecting link between that spirit of partisanship, with all the attendant lawlessness, which prevailed before the Conquest and those associations for mutual aid and charity which are the pride of the nine- teenth century. Of the ill which they did enough has already been said ; it is but fair to say a little of the benefits which they conferred, at any rate, in later times. A guild which was not instituted for trading purposes of any kind was connected with a church in some town or city ; and the same church might have more than one such guild attached to it. Thus of two guilds, in the parish church of Houghton, one was described as the guild, brotherhood, or fraternity of the Holy Trinity, another as the guild of the Blessed Virgin Mary. Some of the members, in almost every case, were, according to the terms of the ordinances, to be men and some women. On stated days the brothers and sisters assembled at the church to which they belonged. They were all clad in the uniform of the guild, and bore lights as part of the religious ceremony which was to be cele- brated. After prayers they marched to their guild-hall, where the board was spread, and where ale flowed as 382 GUILDS AND MODERN SOCIETIES. [ohap. v. freely as was becoming. In a large town the streets were almost continually enlivened by processions of these numerous guilds, with their music, their lights, their wreaths of leaves and of flowers. It was not, however, by what they did to justify our forefathers in describing the mother country as Merrie England that the social guilds best deserve to be remem- bered. They were to the fourteenth and fifteenth centuries what the Burial Club, the Friendly Society, and the Insurance Office are to the nineteenth ; and they even rendered assistance to a brother or sister in mis- fortunes which could now be lightened only by an appea,l to private friendship or to public sympathy. Not only did they aid to bury the dead, to nurse the sick, to feed the aged and the orphans, to succour those whom a fire had left homeless ; they sent a friendly messenger to -a brother or sister cast into prison, they made a purse for those whom robbers had brought to destitution, they even found a portion for guild-maidens whose fathers had not sufficient wealth. In spite of all their disbursements on behalf of their own members, their connexion with the Church caused them, like the Church itself, to grow rich ; and out of their endowments they sometimes assisted a casual wayfarer or pilgrim, relieved some of the poor of the town in which they were established, and even built alms-houses for the permanent support of the impotent. That their social meetings led to some irregularities is iby no means improbable, if the character of the age is borne in mind ; and some unfriendly reports of free living may have caused at last the dissolution of the religious guilds at the same time as the dissolution of the monasteries. It would be idle to regret that they perished when their time had come, for they would ■ have been ill-suited to CHAP, v.] CHANGES IN THE FIFTEENTH CENTURY. 383 towns in which the population is numbered by millions, and they would have perpetuated that" narrowness of mind which refused charity to all but the orthodox, and which prompted a brother who was a juryman to swear hard in favour of a brother who was a criminal. But the brighter side of these associations reflects not a little light upon the good work which the towns were doing, and enables us to discern how the liberality of modern times has grown out of the restricted sympathies of the past, as they in turn grew out of the still more slender sympathies which had preceded them. We have now seen what were the chief movements which, during a century and a half after the Black Death, were preparing the future of England. We RecapUuia- have seen the bondsmen chafing under their gressmadein bondage and ready to make common cause with century. any one — gentleman or outcast, Royal Duke or Lollard preacher — who would aid them to gain their freedom. We have seen heresy burnt out for a time at the stake, only, like the Phcenix, to rise again from its own ashes. We have seen Wycliffe giving the Scriptures to the people in the vulgar tongue, and accused by the opposers of progress of throwing pearls before swine. We have seen printing come to the aid of a growing thirst for knowlledge. We have seen the towns not only increasing in wealth and strength, but able to extend a helping hand to the villeins, to threaten the extinction of villenage, and to transfer labour not only from place to place, but from the position of a lord's due to that of the labourer's pro- perty with a market-value of its own. In all this we see the infancy of modern society, but the obstructions to its growth without the town gates had been little if at all diminished since the days 384 EVASIONS OF THE LAW [chap. v. of the Black Death. The study of the Roman Civil Law, which had expanded the views of lawyers in Obstructions ^^ thirteenth century, and the earlier part of evSsor the fourteenth, was afterwards made to serve Mortmffniaw the party spirit of a class. The clergy— and by the clergy. gspg^^j^Hy ^-j^g monastic houscs — always anxious to extend their possessions, had always shown much inge- nuity in evading the law. It was necessary for them to obtain the king's licence before they could legally ac- quire and hold lands in mortmain. But by various subterfuges they continued to increase their wealth and to get the better alike of the common law and of various statutes made to assist it. Towards the end of the reign of Edward III., and perhaps earlier, it became an ordinary practice to grant land in such a manner that the fee was conveyed nominally to certain persons, who held only for the benefit of a religious house. By this device the religious house escaped all penalties, and yet took all the profits of the land conveyed. A statute was passed in the reign of Richard II. which must at least have checked, if it did not put an end to, the practice, by declaring conveyances of land to the use of religious corporations as much subject to the law of mortmain as a direct convey- ance of land to religious corporations themselves. But the introduction of uses, fraudulent as it was in intent, had a permanent effect upon English law. It is not a little remarkable that the incongruous union of Roman with feudal doctrines, designed to further the wishes of individuals in opposition to the ™oftian Law Commands of king and parliament, received in tadaiTand- the end a legal sanction, and produced an ofif- '^*^' spring in which the modern conveyancer has the most implicit trust. During the Wars of the Roses CHAP, v.] IN THE CONVEYANCE OF LAND. 385 the conveyance to uses, like the entail, was commonly- employed to secure lands against forfeiture for treason. At the time, it served the purpose for which it was in- tended, so far as any legal subtlety could serve that pur- pose in an age when might was stronger than right. But by a curious retribution the very scheme which was devised to increase the wealth of the Church, and used to preserve the power of the barons, became in later days the instrument which rendered the transfer of land com- paratively easy, and aided to change the relative position of classes. It has been shown how commerce was almost of necessity polluted by fraud in its early existence in England \ fraud, too, was the almost inevitable accom- paniment of the purchase and sale of land, when land in England began to be bought and sold with more freedom than the old feudal system had permitted. The difficul- ties which lawyers of our own time perceive in any at- tempt to pass land more easily from hand to hand are difficulties which can be traced back to the first applica- cation of uses. The principles to which it has given rise have been simplified as far as simplification seems possible ; and our alternative is to accept a cumbrous machinery, which enables purchases and settlements to be made with tolerable security, or to sweep away every vestige of antiquity, and to open between the past and the future a great gulf, which might, perhaps, cause a landholder to tremble for the fate of his grandchildren. This is the penalty we pay for the disingenuous arts by which our forefathers strove to make themselves stronger than the laws of England. In other respects the mere forms of the law under- went little change during this period, and that little was without immediate effect upon the manners of the people. VOL. I. c c 386 JURORS AND WITNESSES. [chap. v. The names of criminal proceedings had long been very nearly what they are now; there had been nominally Absence of the Same Courts, the same Judges, the same improvement ^ . , _^.,,. iniegaipro- lustices of the Peace, the same Irial by Jury. cedure; the jurors still Yet all was as different from the present ad- witnesses ; perjuries. ministration of justice as that is from the rude legal devices of any half-civilised people. In civil cases, indeed, the trial was more like that of modern times than the criminal ; a jury was empanelled, documents were produced, and witnesses were examined in court. But even in civil causes the jurors were chosen from the neighbourhood in which the suit arose, and were expected to give a verdict not simply upon the evidence laid before them, but also upon their own knowledge of the facts. If they pronounced in favour of the weaker party, they always had before them the danger of an attaint — which was equivalent to a prosecution for perjury. When they were convicted, their goods were seized, their meadows were ploughed up, their woods were felled, their houses were demolished, and they were themselves committed to gaol, and declared to be ever after infamous and incapable of taking an oath in a Court of Record. A wholesome warning to perjurers, no doubt, and one which a Chief Justice of England who lived in the reign of Henry VI. considered sufficient to check the crime of perjury ! But in Fortescue's ' Praises of the Laws of England,' it is easier to detect the hand of the panegyrist and the courtier than to discover the true condition of the country. A statute of that very reign, like innu- merable preceding and succeeding documents, bears tes- timony to the almost incurable habit of forswearing themselves, which jurors and compurgators had con- tracted in the long course of centuries. This could never CHAP, v.] THE 'PEINE FORTE ET DURE; 387 be amended until, on the one hand, partisanship lost some of its power through the weakening of the barons, and, on the other hand, a clear distinction was drawn between jurors with unbiassed minds and witnesses who laid the facts before them. In criminal trials it does not appear that during Fortescue's term of office the law had advanced so far as to permit the examination of witnesses in court. Treatment The indictment, indeed, was a record of the cused: the finding of the Grand Jury, themselves at once et dure.' the witnesses and the accusers. This, or the depositions of approvers extorted in gaol by threats or by torture, or the criminal's own confession on the rack, or in answer to a judge's examination, must have been the evidence upon which men were hanged and women were burnt. It has, indeed, been denied that the use of torture was known to the English law. That it was known, however, is certain, though it was not legally permitted, except by licence from the King or Council. In one form, too, it could be applied by order of a judge, not indeed to extract evidence, but to make a mute prisoner plead, or to punish him for not pleading. Before the in- fliction of this ' peine forte et dure,' the accused was warned three times of the penalty which would attend obstinate silence, and allowed a few hours for considera- tion. If the prisoner, whether man or woman, still per- sisted, there was pronounced the Judgment of Penance : — That you be taken back to the prison whence you came, to a low dungeon into which no light can enter ; that you be laid on your back on the bare floor, with a cloth round your loins, but elsewhere naked ; that there be set upon your body a weight of iron as great as you can bear — and greater; that you have no sustenance, c c 2 388 THE BE JETS OF ENGLISH ROBBERS, [chap. v. save, on the first day, three morsels of the coarsest, bread, on the second day three draughts of stagnant water from the pool nearest to the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day until you die. A person accused of felony, however innocent, had no protection except the right of challenging jurors, no Continued means of preserving the legal descent of his remaAabS' lauds to his heir, when he feared a just or un- sentiment of ■ ^ • • . -i i ^t r Chief Justice Just couviction, except sileuce and the resolu- tion to endure the press — for in felonies, short of Treason, standing mute was not equivalent to a con- viction. No one could be certain that he would not some day be at the mercy of any scoundrel whom malice or the duress of prison incited to mention his name — un- less he happened to possess the good-will of his neigh- bours ; and the good-will of neighbours was, in those days, not to be purchased for so small a price as mere inno- cence. Chief Justice Fortescue, who praises in one work the laws of England as the best that had ever been known, praises, in another, the English character for qualities which will hardly command admiration in modern times. He preferred theft with violence to theft without; and he has bequeathed his sentiments to posterity in a few words which tell more of the tone of society than many a bulky volume. More men, he says, were hanged/ in England in one year for robbery or manslaughter thaai in France in seven, because the English had better hearts ; \ the Scotchmen, also did not dare to rob, but only con - mitted larcenies. These words bring before us the greatest impedi- ment to the towns in their struggle against that spirit of lawlessness which had been introduced after the fall CHAP, v.] THE BRIGHT SIDE OF CHIVALRY. 389 of the Roman Empire, which Englishmen of the rural districts were prone to regard as an inherited virtue, and with which the country infected, to a less extent, even the towns themselves. Those Better Hearts, The 'Great for which the Chief Justice of England had thrEngUsh: a tender regard, were the great support of tra- its^bes^ ™ ,..-,.,. aspect. ditional mstitutions, or, to use more accurate language, of traditional disorder. But as excellence of any kind is deserving of respect, and as the days of chivalry were now drawing to a close, there may be some advantage in glancing at the deeds of knighthood without the walls, as well as at the humbler, but more fruitful efforts of the burghers within. There is no doubt that the knights of those days had great hearts in the old sense of the term, and it would be unjust to depreciate the value of physical courage in moments of national danger. Fortunately, the industry and care of a great lawyer have secured to us a view of chivalry in its best aspect ; and though regret can hardly be caused by the extinction of those knightly instincts which prompted men to incessant deeds of arms, unmixed blame can hardly be awarded to men who strove to render victory an art and the concealment of pain a science. A treatise which was copied for the use of Sir Matthew Hale tells us how the best among those better hearts which were the glory of old England The 'Battle prepared themselves for the Trial by Battle in descriMby cases of Treason. It has thus a direct bearing mourer. upon the History of Crime, and illustrates incidentally the customs and the sentiments of the period. It was com- piled early in the reign of Henry VI. by John Hill, who describes himself as Armourer and Sergeant in the Office of Armoury with King Henry IV. and King Henry V. 39° THE BATTLE OF TREASON. [chap. v. ' The first honour in arms,' he says, ' is that a gentleman fight and win the field, either as appellant or as defendant, in his Sovereign Lord's quarrel, in a battle of treason sworn within lists, before the Sovereign Lord himself.' As in a court of law, the appellant had a counsel who was assigned to him before the Constable and the Marshal, and who was bound to teach him ' all manner of fightings and subtleties of arms that belong to a battle sworn.' Not the least responsible duty of this counsel was to take care that the appellant was properly clad and armed. The minute details which the armourer gives are of value only to the antiquary ; but the object which was to be kept in view in all the preparations is of far higher in- terest. The perfection of the armour and arms was, of course, a subject of anxious forethought ; but it was considered even less important to protect the champion and give him the best weapons of offence than to conceal the wounds he might receive from his adversary. To this intent he was provided with shoes made of red leather, and with red hose to draw over his leg-harness or greaves ' because his adversary shall not lightly espy his blood, for in all other colours blood will lightly be seen.' Such deliberate valour as is indicated in these precautions deserves, beyond doubt, to be called noble ; and it is because knights were as brave and as calm in battle as in their own chambers that their contemporaries and the men who lived after them acquired the habit of summing up all the virtues in the one word — Chivalry. It was also a part of the counsel's duty to engage three priests, each of whom was to sing a mass on the day of battle — one the Mass of the Trinity, one the Mass of the Holy Ghost, and one the Mass of Our Lady, or of any saint or saints to whom the knight had sworn CHAP, v.] THE BATTLE OF TREASON. 391 devotion. Throughout the night before the encounter a light was kept burning in the champion's room and his counsel watched him and observed how he slept. In the morning he went to church. His harness was laid out at the north end of the altar and covered with a cloth ; the Gospel was read over it, the three masses were sung, and at the end of the third a priest gave a blessing. He then repaired to the field fully armed and ready for the conflict ; he sent his counsel to the King with a request that he might have free entry when he came to the barriers, and that a chair or tent might be set up for his use. The request was, of course, granted, and he approached with his confessor, counsel, armourer, and servants. His counsel bore before him a long sword, a short sword, and a dagger. At the barrier he was met by the Constable and Marshal, who said, ' What art thou ? ' He told his name and the cause of his coming, and waff then admitted with his followers. As he entered ' he blessed himself soberly, and so twice,' ere he approached his Sovereign Lord. And twice he and his counsel did their obeisance before they came to the steps of the king's seat. They knelt, and, as they rose again, again made obeisance. They then went back to the tent, but, before entering it, turned round once more, and once more made obeisance to the king. When the defendant appeared on the field the appel- lant again left his tent, and stood fully armed, ' taking heed of his adversary's coming in, and of his countenance, that he might take comfort of it.' The weapons of both parties were then brought before the King and examined in his presence by the Constable and Marshal. If there was no fault in the arms the appellant was immediately afterwards summoned to the First Oath. 392 THE BATTLE OF TREASON. [chap. v. When the appellant had sworn to the truth of his accusation before the king, he returned, with the same formalities as before, to his tent. His counsel, who had carefully noted the terms of his oath, remained in the king's presence to hear what was sworn by the defendant. Unless the defendant swore that ' every word and every syllable of every word ' sworn by the appellant was false, the appellant's counsel might ask judgment without fur- ther ceremony. But if the defendant swore as required, the counsel returned again to the appellant's chair to await the summons for taking the Second Oath. The Second Oath was followed by the Third Oath, and if the appellant persisted in making his accusation every time in the same terms, and the defendant every time denied it without equivocation, evasion, or cavil, the tents were removed and the lists prepared for the actual battle. Upon this the appellant's counsel asked for a place within the bar on the king's right hand. ' The cause is this — that such pity may be given to the king, of God, that none of them shall die that day.' The counsel remained in the place assigned till the king had given his judgment. But should the king not see fit to stay the trial, the order was given to cry ' Laissez Aller,' and the cham- pions fought to the deatL There is a ground on which, perhaps, this mode of trial might be justified ; it was the most merciful to the Single combat person accused of treason, as there was no other of^prbatT"' hope for one whom a dominant party had re- ^^''' solved to destroy. Yet what must we think of an age in which it was common for knight to be matched against knight in a deadly conflict — not as gladiator, was matched against gladiator in the Roman arena, for a show, but with a solemn appeal to religion, and with a mockery CHAP, v.] WAR AND SINGLE COMBAT. 393 of the forms of law ? It was only the persistence of the petty spirit of private war which could have kept such an institution in existence in a country in which there was already a growing love of commerce and even of letters. One purpose, indeed, it might have been made to serve, and might be made to serve even now, could the supreme commanders of mighty armies be per- single combat suaded to disband their hosts, and to stake their been useful in national dis- hopes of conquest upon the issue of a single putes : chai- ^ . ... i™g^ °f combat — emperor with emperor, king with king. Richard 11. Unfortunately, however, the experiment was i^'ng- tried without success in the days of chivalry — when, in spite of oaths and appeals to God, monarchs had a latent though more operative faith in favourable opportunities and in strong battalions. Richard II., in the ardour of youth, sent a challenge to the king of France to meet him in single combat, or in a combat in which only the two kings and the three uncles of each should take part, or in a battle to be fought with the whole forces of the two kingdoms on a day and at a place appointed be- forehand. By the issue he wished the war begun in the reign of Edward III. to be decided, and all matters in dispute to be settled. The reason he gave is certainly much to his credit, but was in direct opposition to the martial spirit of his age, and was little likely to ele- vate him in the estimation of his contemporaries. He wished, he said, to stay the effusion of Christian blood, the desolation of the land, the deflowering of virgins, the violation of married women, and all those sufferings of innocent persons which were too numerous and too horrible to be described by the pen or even put into language. His captains, no doubt, laughed at this extraordinary out- 394 ENGLANUS GAIN BY WARS IN FRANCE, [chap. v. burst of humanity, and lost all respect for a sovereign who shuddered at the screams of a woman or a few drops of Frenchman's blood. Had Richard's challenge been accepted, and liis opinions too, the battle of Azincour would never have been fought, and there would have been less glory for Englishmen. But the soil of France would not have been stained with English blood, the Maid of Orleans would not have been burnt at Rouen, and the English and French nations might in later times have been friends instead of enemies. The whole struggle of the English kings to gain possession of the French throne was neither better nor worse than the struggles of a feudal lord to gain possession of his neighbour's manor. The common people in both countries could only lose by war. The king of England might have succeeded in making Paris his capital and England itself a mere province, and thus might have gratified an utterly selfish ambition. For this object men had to die and women to weep, and when at length the conflict ceased, and the balance was struck, it appeared that England was the richer only in the possession of some rolls of parchment in which dead monarchs were proudly styled Kings of England and of France. The generous sentiment which prompted Richard II. to spare human blood and suffering in war is, perhaps, to Private war, be detected in one of the earlier statutes of his and forcible . , , . , . entry : sta- reigu, by which an attempt was made to stay tute against ii-ii ■ rr-ii forcible entry, the ancient and knightly practice of forcible entry. Richard, indeed, was only a boy when the Act was passed, but he was a boy who had shown self- reliance at the time of Wat Tyler's rebellion, and who differed from the nobles about him in being less reso- lutely brutal. The townsmen, it is possible, may have CHAP, v.] STATUTE AGAINST FORCIBLE ENTRIES. 395 begun to discern that private war, as well as war with foreign nations, was directly opposed to their interests, and the burgesses in parliament may have availed them- selves of the opportunity presented by Richard's minority to place upon record a protest against the lawlessness of the kingdom. There can, however, be little doubt that the young king's sympathies were with them, and that any influence he might have possessed with his advisers was exerted in favour of order and against the prevailing love of bloodshed. The Statute against Forcible Entries had for many generations little more effect than Richard's protest against the slaughter of subjects and the burn- ^he statute ing of homes for the purpose of determining privat^ijuris- the territory over which a king should rule, or the principles according to which a crown should de- scend. It will be shown in another volume that the old habit long seemed ineradicable, and was not sensibly checked until the powerful house of Tudor put in force a much abused but useful machinery to root the evil out. Richard II. was quite powerless against the barons ; and ten years after the passing of the Act against forcible entry he was persuaded or compelled to make a grant, such as might have been made in the days of Stephen or of Edward the Confessor. He gave to John Devereux, knight, the castle and manor of Leonhale, in Hereford- shire, with all its liberties and franchises, among which he mentioned expressly the trial, judgment, and punishment, alike of Englishmen and Welshmen, for theft, robbery, murder, or any other crime perpetrated on the manor; and he provided that disuse on the part of Devereux's predecessor should be no bar to the exercise by him of this private jurisdiction. It is true that the castle was on 396 RETAINERS AND LIVERIES. [chap. v. the Welsh Marches, which, with the Marches towards Scotland, were the most disturbed, and therefore the most lawless parts of the kingdom. But to create or to strengthen any private jurisdiction at all was to throw back indefinitely the prospect of a firm and settled government, which should be peaceably acknowledged throughout the realm. A sanction given to a baron or knight, in the independent exercise of an authority which, in a well-ordered government, belongs to the State or to its head, was an encouragement to the assertion of independence in every other form — to forcible entry, to private war, and even to general civil war itself The chief good effected by the Statute against forcible entry, and of the statutes against engaging Statutes retainers and giving them liveries enacted in against re- . . tainers and the Same rcign, was m the wav oi suP;gfestion to liveries also .*' : isb ineffectual, later Sovereigns and later parliaments. In sub- sequent reigns attempts, long destined to be vain, were made at intervals to enforce the provisions of these Acts, and even to assimilate the course of procedure within liberties enjoying private jurisdictions to that of the realm at large. These early efforts, prompted in part by a desire to extend the royal authority, in part by the desire of the townsmen for a more settled government, were useful,- if for no other purpose, at least to inform posterity what was the actual condition of the country. Thus Henry VI. and his Council in Parliament ordain, in accordance with the terms of a petition, that no lord shall knowingly receive, cherish, hold in household, or maintain brigands, robbers, oppressors of the people, manslayers, felons, outlaws, or ravishers of women. They forbid the giving of liverieg or tokens, the bribing CHAP. V.J - MAINTENANCE. 397 of judges, and maintenance in every form, and they require all who have the privilege of excluding the king's officers from any liberties to summon suspected persons, and exact an oath for the observance of these provisions. The most important of the privileged districts were the Counties Palatine. But the very existence of the Coun- ties Palatine and of similar little kingdoms within the kingdom of England was opposed to the whole spirit of the ordinance. The holders of these liberties acted as though they were bound to enforce obedience from their inferiors, but not to give obedience themselves. They had kingly powers, and thought themselves entitled to act as kings. Thus, in spite of statutes, ordinances, and commissions, we find the Bishop of Durham becoming party to a deed by which one Sir William Eure agrees to be his retainer against all men in peace and in war, upon condition of receiving twenty pounds a year ; and the deed appears without concealment upon the rolls of the Bishop's Chancery. The evils which can be traced back to the days when barbarous tribes and petty chieftains settled on the ruins of Roman civilisation were, it seems, but little The force of abated after the lapse of a thousand years, tomandthe M 1 ■ 1 1 1 • force of ma- They were evils which had existed before 'eriai pro- gress evenly Rome became great, and which are character- balanced. istic of uncivilised or half-civilised peoples. They had disappeared, or nearly disappeared, with the growth of wealth and the increase of culture in the Roman towns ; and like causes were destined once again to produce like effects, though the time was not yet come. During the Wars of the Roses, and immediately afterwards, two forces were almost evenly balanced — the force of ancient custom, which was in fact lawlessness, in the rural dis- 398 SCANDALUM MAGNA TUM. [chap. v. tricts, and the force of material progress, which was pre- paring the estabhshment of order, in the towns. A remarkable form in which the opposition of these two forces to each other displayed itself was the charge of ' Scandalum Magnatum.' As early as the reign of Edward I., when the towns had just succeeded in obtaining their charters, a statute Charges of was passcd which made it a grave offence to ' Scandalum -, -- -. ri J1 Magnatum' devise or tcU any lalse news oi prelates, dukes, associated with the earls, barons, or nobles of the realm. Others, growth of a new class. too, Were enumerated as being within the mean- ing of the act — the Chancellor, the Justices of either Bench, and all the great officers of state ; but they were named after the territorial magnates, and the majesty of the law was set beneath the dignity of rank. The reasons both for the passing of the statute and for the terms in which it was passed are easily enough to be traced in the manners of the times. When the great landholder arro- gated to himself the privileges of a little king, he naturally regarded evil speech against his kingship as a crime closely akin to Treason, and very different from evil speech directed by one petty trader against another. ' Scandalum Magnatum,' however, could hardly be com- mitted until there had grown up a somewhat powerful class, distinct from that of the magnate, his retainers, and villeins. The evil which he saw in the rise of this new class was far less formidable under Edward I. than it had become under Richard II., when, however, the land- holders had no difficulty in re-enacting the ancient statute and adding more stringent provisions. It is about the time when we may believe the disor- ganisation following the Black Death and the insurrection of the villeins had begun to strengthen, relatively at least, CHAP, v.] THE FISHMONGER AND CHANCELLOR. 399 the population of the towns that the offence of slandering great personages comes into notice, not only in the statute- book, but through definite accusations. One Caseofsibiiie ° and the Earl Walter Sibille, a citizen of London, is accused in of Oxford. Parliament of having uttered slanderous words concern- ing Robert Vere, Earl of Oxford. The chief point in the alleged slander was that Sibille had attributed to the Earl a practice which was notoriously common among all the great landholders — the practice of maintenance, or in other words, of supporting with his influence and wealth, both in law courts and out of them, those retainers who had sworn to serve him, right or wrong, in peace or in war, against all other men. Sibille was condemned to pay five hundred marks, and was committed to prison until payment should be made. There he probably remained during the remainder of his life, unless he was a man of extraordinary wealth. A case which shows still more clearly how deadly a weapon the charge of ' Scandalum Magnatum ' could be made in the hands of a powerful noble is that „ ^ Case of of John Cavendish, a fishmonger of London. ^nrMichaei He accused in Parliament Michael de la Pole, fhe'chan- then Chancellor, of partiality and bribery. ™"°''' After the charge and the answer had been heard, the matter was referred to the King's Justices, who" assumed that the Chancellor was innocent, committed his accuser to prison, and imposed a fine of a thousand marks for the slander. Pole happened, at that time, to be stronger than the party opposed to him, and to have the power of crush- ing an adversary. But only three years later he was again accused of corruption, and of that kind of corruption alleged against him by Cavendish^of letting records be rased, and judgments sold with impunity, and of procuring 40O THE LORD AND THE BEGGAR. [chap. v. pardon for murderers and traitors in order to fill his own cofifers. Whether the Chancellor was innocent or guilty it is now impossible to ascertain ; but it is quite certain that a swift retribution was in store for all who ventured, even in the ordinary course of law, to accuse any man of rank of having done wrong, unless the accuser was supported by a stronger party than the accused. In some instances there can be little doubt that a scandalous and unfounded charge was the instrument Fabrication employed to destroy an enemy, and that the charge! : case pGrsons who fabricated it were most justly and fh^'^" punished. A Sir Ralph, or Lord, Ferriers was '^^^"' accused of having entered into treasonable cor- respondence with the French, of having suggested an in- vasion of England, and of having named a favourable day for an advance upon London. The evidence against him was a packet of letters written apparently by him, and with his seal attached, and addressed to the French Admiral and other French nobles. He declared in Parliament that he was innocent, and requested that he might have counsel to defend him. This, as in cases of far later date, was refused, and he was remanded to prison. His friends, however, made strenuous exertions to save him, and, upon a second hearing, some facts were tsrought to light which certainly ought to have been known and examined before he was placed under restraint. The letters had been found by a beggar in a field in the suburbs of London : so at least the beggar had told the Lord Mayor. But a mere glance at them was sufficient to expose a most clumsy imposture. There were in the same packet letters purporting to be written by Ferriers to Frenchmen, and letters purporting to be written by Frenchmen to Ferriers, and all written in the same hand. CHAP, v.] COMMANDERS OF GARRISONS BRIBED. 401 The seal too, though in other respects well imitated, was found to be of a different size from that used by Ferriers ; and it was held to be beyond a doubt that some of his enemies had attempted to ruin him by conspiracy and forgery. He was acquitted, and the beggar was sent to prison under suspicion. In his anxiety to prove his innocence, Ferriers used an argument which is an unpleasant commentary upon knightly deeds and knightly sentiments. He charges had had command of the English garrison at English Calais ; and he alleged that, had he wished to surrendering _ _ fortresses for play the traitor, he might again and again have bribes. received a heavy bribe from the French to deliver up the place to them, just as other English commanders had delivered up other fortresses for money. This charge of treason in its most degrading form — the treason which would betray national interests to a foreign enemy for gain — was rife throughout the period included in the pre- sent chapter. At the beginning of the reign of Richard II., the Rolls of Parliament teem with accusations against officers who had, as alleged, accepted French gold for the surrender of strongholds in the hands of English troops. Now a Weston, now a Cressingham, now an Elingham, a Trivett, a Ferriers, and a Farndon in the same accusa- tion, have their names inscribed on the records of the National Assembly as traitors who have sold their own and the national honour for a paltry fee from a hostile commander. We cannot know with certainty whether these men were guilty or not. But we can at least per- ceive that to make terms, rather than fight to the death or starve, suggested, not without good reason, a suspicion of foul play in an age when true knights donned red VOL. I. D D 402 ' WE ARE BETRA YED.' - [chap. v. buskins over their armour, so that none might know how much blood was flowing from their wounds. Whether Englishmen were betrayed or not, it was an evil sign for England that they were continually crying The cry of 'We are betrayed!' Either there was a party betrayed ! ' in Parliament whose trade it was to make these foul accusations, regardless of truth, or the men who were accused were guilty of the offence. Sometimes it happens that the sum received is mentioned in the record — as, for instance, the sum of twenty thousand francs in the joint charge against Elingham and his associates. Sometimes, too, a very feeble answer was made by the accused, who ended by submitting themselves to the King's mercy. And if, in some cases, there is reason to suspect that an unfortunate soldier was ruined by the personal animosity of an adversary, the suspicion is little creditable to our forefathers, and cannot wholly remove a foul blot from our national archives. These charges disappear for a time, while the English arms are successful in France, but are renewed Charges of as soou as misfortuue again lends them some against sort of colour. William de la Pole, Duke of William de la _,--,, Pole. Suffolk, was accused of an intrigue to establish his own son on the throne of England, through a royal marriage and the aid of the French king. He had lent his influence, it was said, in favour of releasing the. Duke of Orleans, who had been taken prisoner at the battle of Azincour, in order that the French might the more easily recover their lost provinces from the English, and might thus be disposed to favour his pretensions. He had, it was said, disclosed the king's counsel to the Bastard of Orleans and others of the French nation, and informed them of the strength of the English ordnance and ammu- CHAP, v.] TRIAL AND MURDER OF POLE. 403 nition in France. He had, it was said, delayed the shipping of EngHsh arms for use against the French, and had actually delivered up a portion of the English con- quests in France without any authority. Could it be said that regularity was known in trials for treason as early as the reign of Henry VI., the manner of dealing with the charge against 11 1 His fate. Suffolk would deserve to be called extremely irregular. The king alone gave a decision, and expressed an opinion not indeed that Suffolk was innocent but that the grave charges against him had not been proven. On the other hand, the king pronounced that the Earl had been guilty of such trivial offences as were commonly im- puted to men who had had any opportunity of committing them — of inciting sheriffs to tamper with writs for the hindrance of justice, of procuring the king's pardon for the sheriffs who had been guilty of maintaining wrong doers, of staying processes of outlawry — in fact of abusing power in every way short of treason. Henry's sentence upon him for these venial errors of judgment was banish- ment for five years. His enemies, however, according to the custom of the time, resolved that their work should not be half done. It was not very difificult to find a sea- captain, hardened by many years of piratical adventure, who would name his price for committing a murder. Soon after the ship, which was to carry Suffolk into exile, had sailed from Dover, it was boarded by some ruffians who were on the watch for him. His head was struck off and his body thrown into the sea. In reading of those crimes which were the most con- spicuous part of public life, it would be difficult to fix upon any one point in which the non-trading classes were better in the reign of Richard III. than they had D D 2 404 PARTIES IN THE FIFTEENTH CENTURY, [chap. v. been in the reign of Edward II. The events which occur under Edward II., occur with little variation, except in Absence of the names of the actors, under Richard II.; improvement , , , ■ j • j • in the tone of they repeat themselves again and again during atrocious ' the Wars of the Roses, and have changed deeds of bloodshed, their form but little when Edward V. and his brother are murdered in the Tower. That tenacity of purpose (unrestrained by any consideration of right or wrong) which marks the age of chivalry, displays itself, with a sickening sameness, in deeds of blood which no lord or knight hesitated to do when he wished to pre- serve what he had gained or take to himself what belonged to another. In those days men supped, in- deed, full of horrors ; and we who live in a happier age cannot know our own good fortune, except by contem- plating, for a little while at least, that bygone time in its true aspect. We cannot realise to ourselves the persis- tence of the same spirit through many generations, except by abandoning the antiquated method of the annalist who made a catalogue of facts for each year, and omitted to show the likeness of one year to another. One of the many atrocious crimes committed in the reign of Richard II. was the murder of the Duke of Murder of a Glouccster. It was such a deed as would be a Duke of . ... .... Gloucester, private cxccution. Without any preceding trial, of a Liberal or Conservative leader by opposing Con- servative or Liberal ministers, with the alleged cognisance of the sovereign — the sovereign being the nephew of the victim. The Duke was arrested and shipped off to Calais. An accusation of treason was then prepared against him and other nobles. But when a warrant was sent to the Earl Marshal, then Governor of Calais, to bring him to England for trial, the answer returned was fCHAP. v.] MURDER OF GLOUCESTER. 405 that he had already died of apoplexy. His real fate was probably told by one John Hall, a servant of the Duke of Norfolk, in subsequent proceedings in Parliament. Hall confessed that he met at Calais three of Norfolk's esquires, and some members of Norfolk's household, a valet or yeoman of the chamber to the Duke of Albemarle, and William Searle, a valet or yeoman of the chamber to King Richard. They were acting under Norfolk's orders, and, with a strange appeal to religion, they were all ' sworn upon the Body of Christ, before a certain chaplain of St. George in the Church of Our Lady of Calais, that they would not disclose ' the murder which they were about to perpetrate. After this ceremony they went towards a house called The Prince's Inn, and the Duke of Norfolk with them. Norfolk bade them enter, and left them to their task. Soon afterwards Gloucester was brought to the house. When he saw the valets of the king and of Albemarle, he said, with deliberate irony, 'Now I see I shall do well.' He was then conducted to a chamber, where he was told it was the king's will that he should die. He answered, ' If it so be, welcome Death.' The two valets requested him to see a chaplain and make his last confession. To this he assented, and the preparations for the solemn murder were complete. Gloucester was then made to lie down.a feather-bed was thrown over him, and, while some of the other murderers held its sides, the two valets lay upon the top, throwing their weight upon the Duke's mouth. The pious ruffians who took no active part in the crime fell on their knees around the bed, and wept, and prayed for Gloucester's soul, while Hall, the informer, kept the door. Hall gained nothing by betraying his accomplices. 4o6 MURDER OF GLOUCESTER. [chap. v. It seemed to the Lords, as it is expressed on the Roll of Parliament, that he had deserved as grievous a death as could be adjudged to him, ' because the Duke of Glouces- ter was so exalted a personage.' The sentence passed upon him was like the sentence in cases of treason — that he should be drawn from Tower Hill to Tyburn gallows, and disembowelled ; that his bowels should be burned before him ; that his body should be hanged, and after- wards beheaded and quartered ; that his head should be sent to Calais, where the deed was done, and there set up ; and that his quarters should be at the king's pleasure. 'And execution was done the same day.' It was an event so thoroughly in accordance with the lack of justice commonly shown in high places as Attainder hardly to descFve notice, that Gloucester was after death, ^jg^i^red guilty of treasou after his death. His case differs from many others not because he was con- demned unheard, but because he was made a traitor by the retraction of a previous pardon. The power, now and long afterwards exercised by Parliament, of pro- ceeding by Bill of Attainder, was simply a power of effecting that which could not, with certainty, be effected by the ordinary legal processes. By no mere coincidence it happened that another Duke of Gloucester, in the reign of Henry VI., half a Similar fate ceutury later," was also suddenly accused of DukTof^' treason, was also found dead in a bed, and was Gloucester, ^j^^ generally believed to have been murdered, like many another noble, and like the two kings, Edward II., and Richard II. Murder was not then, as it is now< considered a crime of terrible heinousness : it was simply one of the most ordinary means of gaining any important end. CHAP. V.J CRIMES OF PUBLIC LIFE. 407 We have seen how Richard II., when little more than a boy, showed some generous instincts, without any lack of courage. The times in which he lived transformed him, before he reached his prime, into a man without the resolute will of less scrupulous man-slayers, and without the consistent virtue which commands the respect of posterity. He could not reign except by the aid of crime ; and the crimes which were as nothing Effect of sur- to his ministers made him ashamed. He ended cumstances 1 ■ -1111 111 "P""! "^^ '^''^" by bemg more contemptible than those who had racter : ri- ■' ° . -^ . . chard II. an begun by being more criminal. Like Edward 1 1., illustration. he was accused of misdeeds which, when committed by a subject, are treason; and, like Edward II., and many subjects who have been called traitors, he was removed from public gaze in a manner which leaves little doubt that he was murdered. It is difficult to feel sympathy for any of the actors in these mediaeval tragedies. If it were possible to regard the Richard who was dethroned as the Richard who faced the mob of insurgent villeins in London, and wished to fight the French king single-handed, in order to spare the blood of his subjects, there would be few characters in history more deserving of compassion. But the Richard who prompted the murder of his uncle, or consented to it, the Richard who was accused of causing the Rolls of Parliament and other records of the realm to be destroyed, erased, blotted, and re-written, is quite another man. The Richard who said, ' I do confess that I am utterly insufficient and useless for the government of the kingdom, and that, for my notorious misrule, I deserve to be deposed,' is no longer to be recognised as the self-reliant youth who would have given his own life for the good of his people. Nor was this the lowest 4o8 PERSONATION OF KINGS. [chap. v. depth to which he fell. When he abandoned his royal estate, he was reduced to such abject servility that he said he trusted his cousin Henry, who was to succeed him, would be a good lord to him. From one who had never done an evil deed, and who was abdicating of his own free will, such words might have had some grace and dignity ; but it is hard to conceive any expressions more unkingly and more unmanly from a king who had enervated himself by debauchery, and attempted to save his throne by homicide. Richard II., when he had abandoned his royal rank, disappeared. The uniform process by which thtc secret Effects of crimes of this period brought forth a brood of secret crimes ; '■ ° personators open misdoers is well worthy of remark. That of murdered ^ ^ kings. which happened after the murder of Edward II. happened in a very similar form after the murder of Richard II., and again after the murder of Edward V. and his brother. In our own time morbid brooding over a deed of bloodshed frequently impels the innocent to self-accusation. In the fourteenth and fifteenth centuries the effect of such a deed, when a whisper of it went abroad, was to suggest some practical means of turning it to profit. False personation, or a false report that the king still lived, followed the death or disappearance of each of the three murdered sovereigns. We have al- ready seen how it followed the death of Edward II. ; we have yet to see how it followed the death of Edward V. ; and. in the meantime, this is the most appropriate place to show that it followed the disappearance of Richard II. A general belief seems to have spread through almost all' parts of the kingdom, but especially through Cheshire, Cumberland, and Westmoreland, that Richard had made CHAP, v.] CHIVALRY TOWARDS WOMEN. 409 his escape into Scotland, and was there Hving in retire- ment. This opinion was of course most dangerous to the new occupant of the throne, and warrants were issued for the arrest of all who had spread it. When Henry IV. was in the fifth year of his reign, he granted a general pardon to all offenders, except William Searle, Richard's valet (who, after having been concerned in the murder of Gloucester, had pretended to carry letters from his dead master), and Thomas Warde, of Trumpington, who had taken the name of the dead king. Warde was the natural successor of the imaginary Edward II., who caused an earl of Kent to fall, the natural predecessor of Lambert Simnel and Perkin Warbeck. Crimes which are alike in their character, are alike in their con- sequences. The period included in the present chapter begins at a time when the murder of Edward II. was still within the recollection of men in the prime of life ; it ends Richard ni, with the death of a man who caused his two 'chivalry.' nephews to be killed, and who did not scruple to call his mother a harlot in order that he might himself be called a king. But such was the age .of chivalry — so far at least as the ' chivalers ' were concerned — and all the minor events of life were consistent with the great deeds of usurpers and of chivalrous assassins. That respect for women which is of modern growth, and which is commonly supposed to be chivalrous, is sought in vain among the records and chronicles , ^hivai ■ of the Middle Ages, and appears only in modern d"uon of °"" romances, the authors of which have not truly *°'"™- realised the character of the times of which they have written. The wild romances of an earlier date, to which an Eastern tinge was given by the Crusades, 4IO • ROYAL MISTRESSES. [chap. v. abound, it is true, with instances of apparent devotion shown by a knight to his mistress. Yet, even here, it will be found that all the knight promises or does is to main- tain against all comers the superior beauty of his lady gay as compared with the lady gay of any other knight. This was, no doubt, gratifying to the vanity of the ' woman, but did not preserve her either from insults or from hard knocks. We have seen how common was the practice of exposing women, whatever their rank, to the ignominy and indecency of a public penance in the streets of London. Their condition in other respects was in perfect harmony with such exhibitions — hardly less so in the days of Jane Shore than in the days of Alice Perers. Alice Perers, like Jane Shore, was a king's mistress. She soothed the last hours of Edward III., over whom The Mis- shc acquired such influence that she sat at his icings: AUce bcd's head when all the Council stood waiting outside his bed-chamber door. When men could not obtain what they wished by any other means, they commonly made what interest they might with her to gain the good-will of the king, and rarely if ever in vain. Her power, like all other power in those times, excited the envy of the less powerful ; but it hardly appears that the openness with which her position was acknowledged was thought a great public scandal. So long as the old king lived she was probably in a happier condition than any woman in England. As soon as he died the Parliament saw no loss of dignity in declaring all her lands and goods forfeited, and in banishing her from the realm, on pretence that she had been guilty of maintenance — an offence of which few landholders had not been guilty in at least an equal degree. Alice, CHAP, v.] WOMEN IN TOWN AND COUNTRY. 411 however, seems to have been very skilful in managing her own affairs, for she married not long afterwards one William Windsor, who obtained restitution of her lands. It is to be feared that the man who would knowingly marry a royal mistress would not prove a better husband than the average knights of his time. Among the landholders, an unmarried but virtuous girl seems to have led a far less pleasant life than a royal mistress. Affectionate confidence between Mothers and 11-11 T • • 1 daughters : parents and children was very rare, 11 it existed chastisement *■ of a young at all ; and that ancient spirit which had caused >ady. the sale of brides, and made a woman a chattel, was hardly even yet extinct. It was customary for the relatives to seek a husband suitable in wealth and rank, and to arrange a marriage as a matter of business. Until the maiden was wedded she was kept strictly under control ; and the kind of discipline which was enforced is well illustrated by a letter written late in the reign of Henry VI. The writer was the widow of a landholder, and she was cor- responding with the brother of the young lady whose case she describes and whom she is anxious to serve by finding a husband. This young lady was under the care of her mother, and the following was her condition : — She might not speak with any man, not even with her mother's servants ; ' and she had since Easter, the most part, been beaten once in the week or twice, and some- times thrice in a day, and her head was broken in two or three places.' The only indication of any real improvement in the conditiort of women since the days of the Black The only im- . , , , 1 • 1 provement in Death was, as might have been expected, in the the condition , , , . ofwomenwas towns. Not only were the more laborious oc- in the towns. cupations, at which women had been compelled to work, 412 STRIKING IN COURT. [chap. v. now falling to the lot of men, but an increase of wealth and luxury was providing for women occupations more befitting their sex. We hear less of female bakers and more of female weavers ; and in the reign of Henry VI. we find a complaint made by the female silk-workers in London that Lombards and other foreigners were invad- ing their handicraft, which was one requiring art and skill. The silk-women gained their point, and the Lombards were excluded under a penalty of twenty pounds. Town-life, however, had as yet effected but little per- ceptible diminution in crimes of violence even within the The towns towus thcmsclves ; and .while the ' peine forte et were Eififcctcd by the law- dure ' was applied in gaol, riots and affrays were lessness of the . , country. commou enough in the law-courts — hardly less common in the reign of Henry VL than they had been in the reign of Edward HI. The principal Courts sat commonly in ' the Great Hall of Pleas within the King's Palace at Westminster.' One A brawl in moming the Tudsfes were sitting; in the Court of Westminster • , a> r • . ti i Hall. Chancery, in the Court of Kings Bench, and in the Court of Common Pleas; and at the same time the Lords Spiritual and Temporal of the King's Council were assembled in another part of the Hall. Court was but imperfectly separated from Court, and the Courts from the Council. The origin of all these bodies from the one ancient Court or Council of the king was still called to mind by the meeting of all under the same roof — and that the roof of the Royal Palace — and by the easy communi- cation from one to another. In the part of the Hall assigned to the Court of King's Bench there suddenly arose a great commotion. The Deputy-Marshal of Eng- land was reading a document relating to the Marshal's Office when one Ralph Garneys sprang forward with CHAP, v.] AFFRAY IN THE STAR-CHAMBER. 413 clenched fist and struck him in the face. In the struggle which ensued the whole of the Courts were thrown into confusion. All the Judges had to leave the Bench, the Council was broken up, and tranquillity was restored only when the Hall was cleared of officers as well as of rioters. A scene not less characteristic of the age was enacted during the same reign in the Star-Chamber. This appears to have been then the meeting-place of the House of Lords rather than of the Committee which was a„^^,j ^n a afterwards known as the Star-Chamber Court. i™'*the"sfar- On one occasion Henry VI. was present with the Lords sitting in Parliament. An esquire named WiUiam Talbois had some grievance against Ralph, Loi'd Cromwell. A number of armed followers appeared with him in the Chamber and made a sudden attack upon Cromwell, who was sitting in his place in Parliament, and whom they nearly succeeded in killing before they were interrupted. Talbois, it is true, was afterwards committed to the Tower, but his enterprise was none the less illus- trative of the times ; and he lived to be included in a Bill of Attainder passed against Lancastrians in the following reign. The influence which the example of the townsmen was feebly beginning to exercise upon the landholders was counterbalanced by the influence which the Armed re- fr , . 1111 -ii ■! tainers riding ancient habits of the landholders still exercised into the towns to im- upon the townsmen. In spite of statutes and pedethe ^ course of proclamations, the great lords not only engaged justice. retainers, but rode with them armed into the towns. It was only consistent with the old traditions and the crimes perpetrated on every side that attempts should be made to intimidate judges as well as to bribe them. Thus, in the year 1451, when the sessions of Oyer and Terminer 414 CONDUCT OF MEDIEVAL SOLDIERS, [chap. v. were being held at Walsingham, four hundred armed horsemen appeared to support a popular defendant, and effectually over-awed the plaintiffs and their party. No legal forms, however excellent, are of any avail when the whole constitution of society is tainted with hereditary lawlessness. An effort was made, in the reign of Henry IV., to stay the savage practice of maiming an enemy, which had been Mutilation iutroduced, after the Romans left Britain, by the common Teutonic invaders, which was, as the Roman o ence. Emperor and the laws drawn up in England before the Conquest tell us, a common punishment among barbarians, and which sensibly affected the manners of the nation as late as the reign of George I. Henry assented to a statute which, for the first time, declared that it was a felony to cut out the tongues or put out the eyes of the king's subjects, of malice aforethought. It was not for many a generation afterwards a felony to slit, the nose, to cut off the nose or lip, to cut off or disable any of the limbs. The progress indicated' even by the law passed under Henry IV. may be judged from the fact that the offences against which it provides are said, in the preamble, to be daily practised. That modern sentiment, indeed, which jealously pro- tects human life and human blood was still almost General want uulcuown. The affectiou which has often been of tender- -i i i ness. attributed to the servants of a great feudal lord exhibited itself, at his death, in a furious riot within his house. They could agree in nothing except that the master's goods should be distributed among themselves ; and each took and gave hard blows to secure a greater share than his fellows. Military discipline, when the military spirit was at its CHAP, v.] FALSTAFF'S RAGGED REGIMENT. 415 height, was also unknown according to our present ideas of it. The EngHsh soldiers, who could not hold „ . , ° ' Brutal con- France for England, and were to return defeated, ^^^1°^^^ if not disgraced, began their campaign by harry- forerg^n*^"' ing their own country in their march to the port ^^""^^' from which they were to sail. There was made in Parlia- ment, in the reign of Henry VI., a piteous complaint from the inhabitants of Dorsetshire, Hampshire, Sussex, Kent, and other counties lying on the sea-coast. Their kins- men, they said, had been murdered, their wives and daughters ravished, their cattle and goods stolen, by the king's soldiers who had passed that way, and they prayed that some remedy might be provided for the future. These practices, no doubt, were forbidden, but forbidden in vain. In the reign of Edward IV. there was also an expedition to France, and when the soldiers returned they behaved no better than the soldiers of Henry VI. Their crimes were so numerous and excited such bitter outcries that the king in person went with the judges on circuit to try the offenders. It is related, as a remarkable fact, that he allowed even his own domestics to be hanged if they had been caught in the act of robbery or theft. If soldiers marching to do battle against a foreign enemy committed brutalities in England, which they could hardlv surpass in France, it is not difficult Horrors of rr • the Civil to imagine what must have been the sufferings wars. of the country people when English king was fighting English king on English soil. The loss of the French possessions added new bitterness to English quarrels; and the general belief that English garrisons had lost fortresses through treachery was expressed by Jack Cade when he made a charge of such treachery against Sir John Fastolf. It is to this popular belief that we are, in all 4^6 WAJiS OF THE ROSES. [chap. v. probability, indebted for Shakspeare's description of Falstaff's ragged regiment, and for many points in Falstaff's character. But neither Jack Cade, whose re- bellion may be considered the beginning of the Wars of the Roses, nor the leaders on the side either of York or of Lancaster regarded the misdeeds of their adversaries as food for a comedy. Men were terribly in earnest in those days, even when they played the traitor ; and their jokes were, for the most part, grim and practical. It mattered, perhaps, little that housewives thought as much of long-bows and arrows, of cross-bows and bolts, of pole- axes and armour for the defence of their homes, as of furniture for their bedchambers or fittings for their malt- houses. It mattered little that a letter could be sent from one part of England to another only by a trusty special messenger, or by the uncertain hands of a pilgrim or a chapman travelling to a fair. It mattered little that money could not be safely carried in any way from any country town to London, because the roads or paths were infested by thieves. All this was but the ordinary con- dition of England in time of peace, as that time was called when there were no greater deeds of arms than riots, routs, and affrays, forcible entries, and murders by great gangs of robbers. It mattered not very much that pesti- lence infected the towns, as pestilence always infects them during wars, for they were so ill-drained and ill-built that they were rarely free from some kind of plague. But worse evils even than these befel the English people during the Wars of the Roses, if we may believe the Petition of the Lords and Commons to Richard, Duke of Gloucester, immediately before he became Richard III., King of England. As usual, a contrast was drawn between the great ' prosperity, honour, and tranquillity ' of CHAP, v.] FOURTH AND FIFTEENTH CENTURIES. 417 a past time not definitely fixed and the miseries still fresh in the memory of living men. After that bygone period of happiness, always seen as in a mirage, the rulers of the land, it was declared in Parliament, delighted in adulation, were led astray by sensuality and concupiscence, and followed the counsel of persons who were insolent, vicious, and inordinately avaricious. Felicity was turned into wretchedness, prosperity into adversity; order and the law of God and of man were confounded. The kingdom was ruled by terror, justice was put away and despised, and murder, extortion, and oppression took its place. ' No man was sure of his life, his land, or his livelihood, of his wife, of his daughter, or of his servant ; every good maiden and woman standing in dread to be ravished and defouled.' At the accession of Henry VII., which is usually regarded as the time when the dark ages came to an end, and when our modern civilisation began, nearly Less security eleven hundred years had passed since the civilisation at . . tlie accession Romans had left Britam to her own mtestme of Henry VII. than quarrels and to the inroads of pagan pirates, before the whose chieftains could not write and despised p^'""=d- the effeminacy of men who could. From the time when marauders, crossing the German Ocean, had established their supremacy and given the.name of England to the south-eastern portion of the island, there had been many customs and many habits of thought which the long centuries had been unable to soften, or even to change. And thus when the first Tudor ascended the throne there was less security for life and property, less love of art and of letters, less of all that culture without which civilisation cannot exist, than there had been when the last legion embarked for Rome. VOL. I. E E 4i8 PROSPECT OF HIGHER CIVILISATION, [chap. v. There was one force at work, however, which was destined to raise England higher among nations than Buttherewas RoHie hcrself had ever risen. England was hrgto°dviii- becoming almost imperceptibly what she had through free never before been — the land of the free. While labour. , , .... ,. the towns, whatever their origin, were sending representatives to a national parliament, the institution of slavery, in its last form of viUenage, was gradually dying out even in the country. The towns, whatever their grandeur, had never in the days of the Romans become grand by the aid of free labour. Nor, perhaps, would England have advanced as she did, had not religious dis- content formed a bond of union between country and town. There were two kinds of freedom which had long been coveted — freedom of the person from the ownership of a lord, and freedom of the mind from the dictation of a priest whose morals did not command respect. Neither had yet been attained ; but some progress had been made towards the attainment of one, and a great, though long a vain, struggle was about to be made for the other. There was a natural sympathy between the fugitive villein and the enterprising townsman, whose opposition to the landowner in all political matters was hereditary. There were, no doubt, many bad passions excited by the change implied in the emancipation of those villeins who became not copyholders but working manufacturers. Yet to this emancipation the greatness of England is to be traced. The labourer who is not free has little interest in his work, and is little likely to become an inventor. It is to the inventive power of her sons that England owes her wealth and all that her wealth has gained for her. She had many benefactors unknown to fame before Arkwright made her richer by the spinning-jenny, or Watt by the CHAP, v.] DIFFICULTIES TO BE OVERCOME. 419 practical application of the steam-engine, or Stephenson by an adaptation which for the first time gave us better communications than the Romans had left us. All the intellectual energies of the race, which slavery had buried too deep for movement, burst into activity when the weight was removed. Thus it has come to pass that England's capital is at once the largest, the richest, the healthiest, the most secure, and the most accessible of all the great capitals which have ever existed in the world. Under the Tudors, too, England was to enjoy a government which, if not settled and regular, according to modern ideas, was infinitely more settled than Prospect of a more settled any which had preceded ; and a settled govern- government. ment is the greatest blessing which a nation can enjoy — even though it may not be in the best form which a philosopher could conceive. The Barons had thoroughly exhausted themselves in the Wars of the Roses, and had less strength than at any previous time for making or un- making kings. The causes which gave strength to the Crown gave strength also to the Commons. Commerce began to flourish, towns to increase, and London to ex- tend itself so far that many proclamations were made with the object of stopping its growth. In one sense, therefore, it may fairly be said that modern civilisation began with the reign of Henry VII. It yet remains, however, to be shown how stubbornly the ancient ignorance and , brutality fought against new ideas and strove to maintain their own The resist- ance of place in the world. It yet remains to be shown ignoranceand ■t^ "^ brutality still how recent are our greatest improvements *,°JJj^="*"J in the administration of justice which may, '°"s- perhaps, be one day still further improved. Many a E B 2 426 THE TEACHINGS OF THE PAST. [chap, v generation was to pass away before even trial by jury as we now understand it could fully supplant that trial which was known by the same name, but in which the witnesses were the jurors and the jurors the witnesses. Many a generation was to pass away before even persons accused of treason could obtain a fair hearing at the bar of the Lords — many before it ceased to be a crime to hold religious opinions different from the opinions expressed in an Act of Parliament. Men were long afterwards to be burnt for heresy, and women for treason, and great lawyers were yet to profess on the Bench their irrevocably fixed belief in witchcraft. If the introduction of printing, the prospect of an undisputed succession to the crown, the diminution of General villenagc, and the attention which was now society a^t the being directed to commerce and maritime enter- Middie ^ prise be excepted, there was little to distinguish ^^^' the end of the fifteenth century from the middle of the fourteenth. These, indeed, are great exceptions. But corruption still went hand in hand with violence. There was as yet no confidence in any judge or in any officer. Peculation by a chancellor and peculation by a sheriff alike excited complaints, but neither excited sur- prise. Education by means of printed books was little given and little coveted ; the education which is given by public acts of bloodshed was brought home alike to man and to woman, to the aged and the infant. A hasty word was commonly punished by the dagger ; a claim, rightful or wrongful, was commonly enforced by a troop of armed men. The gibbet, with a robber hanging in chains, was one of the objects most frequently presented to the eye. A petty thief in the pillory, a scold on the cucking-stool, a murderer drawn to the gallows on a hurdle, were spec- CHAP, v.] END. OF THE MIDDLE AGES. 421 tacles as familiar when Henry VII. ascended the throne, as a messenger from the telegraph office is to ourselves. London Bridge, which is now thronged with travellers peaceably making their way to a railway terminus, was then a narrow thoroughfare, with unglazed shops on either side, with the obstructions of a drawbridge half way across, and perhaps chains at either end. Its chief adornments were the heads of traitors, fixed on poles, as a warning to all who might lack the skill to be on the right side in any future commotions. The fatherless and the widow, if claiming kinship with the king, might sometimes gain possession of the mutilated remains of father or husband, after a few days' exposure to the jeers of the mob. Those who were less fortunate suffered, in addition to their bereavement, the pangs of reflecting that the features which were most dear to them were to be impaled, as an exhibition, during the king's pleasure, which was, in fact, the pleasure of sunshine and storm and natural decay. Nor was London the only city to which was given this impressive caution. The head of a traitor was often sent to the neighbourhood in which the treason had been committed ; and there was no town so little favoured as not to receive ever and anon the ghastly present of a quarter, wherewithal to decorate its walls or its gates. Siich, even in their last years, were those middle ages which some teachers would have us believe richer than our own in graces and in virtues. Admiration ^he transi- and loathing are matters of taste ; but the modem°stMe facts which have been adduced are, it may be malns'toVe" hoped, sufficient to prove that the questions asked in the first page find an answer in the slow march of history. Crime, in its worst forms, is, beyond doubt,' 422 DESCENT OF CRIME. an inheritance from past ages ; many, if not all, of the criminals of to-day are the offspring or the imitators, under somewhat different conditions, of more numerous and more brutal criminals who lived in days gone by. The transition of the mediaeval state of society into the state of society in which we live will be the subject of another volume. 423 APPENDIX. REFERENCES AND NOTES. A FEW words, in addition to what has been said in the Preface, are, perhaps, needed in explanation not so much of the refer- ences and notes themselves as of certain omissions. It would be a wearisome task to give reasons, which have been given elsewhere, for disregarding the melancholy ravings of a General ' Gildas,' the inventions ascribed to an ' Ingulph,' the mnume- rable silly stories told even by more trustworthy mediseval chroniclers. It is unnecessary to inflict upon the public all the labours of authorship — to write a catalogue of all the evidence which has been rejected, with the reasons for the rejection. It is, as I am only too painfully aware, an act of great pretension to write the word ' History ' upon a title-page. But the greater includes the less, and the capacity to form an indepen- dent judgment upon the value of different authorities is claimed as soon as the book has received its name. Criticisms upon all the possible sources, of a history would occupy a far greater space than the text of the present work. Suffice it to state that no information has been wittingly put aside, except for two reasons — either because the information seemed to be of little importance to the History of Crime after the plan had been drawn out, or because it seemed to be untrustworthy. As the history is founded throughout upon contemporary evidence, the opinions of modem authors, even upon minor points, have been, as a rule, excluded. There is a great temptation to quote the words of men whose reputation is established beyond cavil, and whom it is impossible not to respect and even to venerate. But, on the other hand, references to books in which materials have been used, as well as to materials themselves, have the great disadvantage of blurring that broad line which ought always to be drawn between first-hand and second-hand information. Nor, indeed, could the mention of great names be of service to the present work, for, so far as I have been able to learn, there is no other history of similar scope. Preceding writers have, therefore. 424 APPENDIX. been mentioned only for one of two reasons — either because they have published collections of original materials, or because they have repre- sentative names associated with doctrines neither impugned nor accepted in the present history. They have never been cited to prove any point which has been put forward in the text as proved. The application of the Appendix to the text, it is hoped, will be free from difficulty. For every chapter of the history there is a correspond- ing chapter of references and explanations. In the side-notes of the Appendix the corresponding pages of the text are indicated. Thus the whole of the sources of each chapter are brought together, and those digressions which it has previously been the custom to throw into an Appendix find their natural place in the Appendix still, but are no longer entirely isolated. CHAP. I.J REFERENCES AND NOTES. 425. CHAPTER I. The short description of prominent criminals in the second paragraph is founded on visits to the dockyard at Portsmouth and to pp, ^.j various prisons, as well as on observations made in courts of des'cription°of law. The 'furtive' look of the professional thief wll also be disappearance ^ 01 various found among other characteristics mentioned by an ob- criminals, server of more experience in 'Female Life in Prison, by a Prison Matron.' Vol. i. p. 177. The passage in which the Gallic or British sacrifice of criminals is described is founded chiefly on Cassar ' De Bell. Gall.,' lib. vi. c. 16. Csesar, however, does not there attribute the custom to the pp, ,o.,2, British priests, but to the Druids of Gaul ; and for that reason andeliTBrltish the subject is introduced into the text with considerable ^^'^°^^-- ,. ■' estimate of its diffidence. The assertion that human sacrifices of some ™'"=- kind were common in Britain is confirmed by Tacitus ( ' Annal.' lib. xiv. c. 30). The identity of the customs established by the Druids in Britain and in Gaul is assumed by the Roman writers on the subject — by Caesar, by Tacitus, and apparently also by Pliny (' Hist. Nat' xxx. 4). Unless, therefore, all matters preceding the Roman occupation, and during the early part of it, are to be ignored, it is necessary to mention them in the spirit in which they are mentioned by the best authorities. It would, however, have shown excessive creduHty to sketch the alleged Druidical form of punishment by fire without a warning that the sketch is warranted only by historical testimony which is not of the highest kind. The Roman writers, though contemporaries, were, perhaps, all dependent on others for their information, and were, in that case, as much narrators at second-hand as though they had lived in the next generation. Still they had, like men who relate events which they have heard from their parents, opportunities of ascertaining the truth second only to those en- joyed by eye-witnesses. To accept all their statements as correct in every particular would be to assume for them. an accuracy which they cannot possess; to disbelieve them altogether would be to carry scepticism into obstinate incredulity ; to discriminate with precision between the true and the false would be impossible, unless eighteen centuries could be annihilated and the scenes of which the Romans had heard could be 426 APPENDIX. [chap. i. re-enacted before our eyes. Nothing is left but to admit that the manners of these early times must always remain in some "obscurity — that they can be regarded only through the eyes of the foreigner, and that behef and disbelief in any detail are equally dangerous. The punishments in the amphitheatres have been rendered so familiar not only to classical scholars but to the readers of general history that it P. J3. is unnecessary to occupy space or time by reference to autho- ^n?sWnStn '^^^^'^ i" iUustration of the subject. It is only necessary to the arena. remark that the persistence of these punishments during the whole period of the Roman occupation is proved by innumerable pas- sages in the Theodosian-Code, and that its existence in Britain is proved by the remains of the amphitheatres themselves. For the description of the Roman criminal law in force during the Roman occupation of Britain, the ' Codex Theodosianus ' has been p followed as the best guide. It was compiled just after the Note on the time at which the Romans probably abandoned the island. use made of . . the Theodo- It could not, therefore, have been mtroduced mto Britam m sian Code. -,.. .,._,, the form of a code ; but it is a compilation founded on earlier imperial laws, many of which were only 'declaratory,' and it necessarily gives, down to the latest date, the general principles accord- ing to which Roman ' judices ' were expected to administer justice in Britain (as in other provinces) on all points on which the Roman had superseded the native criminal law. The edition of the Code which has been used is that of 'Jacobus Gothofredus,' by J. D. Ritter, in the third volume of which is the ninth book of the Code — ' De Criminibus, deque Processu CriminaH.' It is to be understood that the 'Tituli' and chapters to which reference is made below are those of the ninth book except where it has been found necessary to mention others. p ,^ The equality of all ranks in the eye of the law, when an M^estasro? accusation of treason was made, and in that case only, is High Treason, assertcd in Tit. 35, ' De Qusestionibus.' That a slave who made an accusation against his master was to be punished ' gladio ' appears by Tit. 6, c. 3 ; that a slave who concerning the -^vas a receiver of thieves was to be burnt, by Tit. 20, c. 2 ; and useof themore . , , , • , , -it > cruel punish- that One who committed adultery with a free woman was to Romans^ ° be bumt, by Tit. 9; and the punishment of the coiner by Tit. 21, c. 5. The remarkable punishment of the parricide is the subject of Tit. 15. It is well known that a monkey, as well as the serpent, was at one period Pp. 1S-16. sown up in the. sack with the offender. Cc i and 2 of tte^'iad'aiTon^ Tit. 10, ' Ad Legem Juliam dc Vi Publica ct Privata,' show un§M the""™" that forcible entry on land. Tit. 9 that adultery committed by Empire. a free woman with a slave,, and Tit. 14, c. 1, that infaaticide CHAP. I.] REFERENCES AND NOTES. 427 were capital offences. Sentence to the mines is awarded to violators of sepulchres in Tit. 17, as well as elsewhere to other offenders. ' Deportatio,' or transportation, appears as a penalty under the ' Lex Juha de Ambitu ' in Tit. 26, c. 2, and elsewhere: The ' Pistrinum,' or hand-mill, as the 'poena leviomm criminum,' occurs in Tit. 40, cc. 3, 6, 7, &c. The city of Rome is mentioned in these passages, but the punishment was in all like- lihood put in practice elsewhere. It is hardly necessary to give particular references for the use of tor- ture by the Romans. Abundant instances will be found in Book IX. of the Theodosian Code. The assertion that kings of England could afterwards give a licence to torture is founded on the Evidence con- cernmg the Pipe Roll, 34 Henry II., Northamptonshire, Ro. 10, where use of torture 1 /- 11 • 1 -n -ri'i' • by Romans occur the foUowmg words : — ' Petrus Fihus Ade reddit com- and English, potum de xxxv. marcis, quia cepit quandam mulierem et earn tormen- tavit sine licentia Regis' This, and similar passages, show that the Orders in Council for the application of torture only succeed previous orders issuing from the king. The precautions taken by the Emperor Constantine against the punishment of the innocent, or premature punishment of the guilty, appear in the Cod. Theod. Lib. ix. Tit. 40, c. i ; the ordi- Merciful pro- , . . . , . . visions in nance that witnesses must be sworn and that one witness is Roman laws, not sufficient in Lib. xi. Tit. 39, c. 3 ; the reference to the emperor in doubtful cases in Lib. xi. Tit. 36, c. i. According to Lib. ix. Tit. i, cc. 5, 8, g, no one could be held 'reus' or put to the torture except after ' inscriptio,' or ' subscriptio,' by the accuser. The infliction of unnecessary hardship upon untried p ,^ prisoners is forbidden in Tit. 3, c i j and the imprisonment ^°™"iib^ty° of women in the same room \vith men in c. 3. Tit. i, c. 7, is °f*^ person. ' De audiendis reis intra mensem,' and the purport of c. 18 and of Tit. 3, c. 6, is similar. Tit. 36 gives the provisions ' ut intra annum criminalis actio terminetur.' Tit. i, c. 19, contains the rule that judges are not to listen to approvers. The date of this is a.d. 423, but it appears in the form of an order for the observance of a law of old standing, and is, as we should now say, declaratory. Constantine's letter, ' Ad universos Provinciales,' appears in Tit. i, c. 4 ; the rule that even senators should be tried in the province where they were accused in c. i. In Tit. 28, c. i, it appears that p. ,3. 'hi judices qui peculatu provincias quassavissent ' were S-otla the ^ '° guilty of a capital offence; they had, before the year 392, Provincials. been punished by fine. The law of Valentinian, that the goods of the convict should go to his children, appears in Tit. 42, c. 6. This was not established without some vacillation {see cc. i and 4). There is a provision in the laws 428 . .APPENDIX. [chap, l- known as those of Edward the Confessor (xix.) for the benefit of a criminal's wife, who is to have a share of the husband's goods ; and this may be traced back as far as the Laws of Ine (57). See Laws'in7avour also the ' Laws of King ^thelstan ' V. i. i. There is Uttle and children of doubt that the clause was inserted by the influence of the crimma s. clergy, who may have known something of the Roman law. That it was not in accordance with the feelings of landowners is evident from the Conqueror's Laws (i. 27), which show that the privilege was not enjoyed by the wives of persons subject to the innumerable private juris- dictions of the Pre-Norman times in England. It was in fact wholly inconsistent with the general tenour of the laws or dooms which were introduced when the Teutonic invaders came, and could hardly have been of any avail. (For the influence of the Church in improving the condition of women, j-fl;pp. 90-93 of the present volume.) At a later period the wife of a traitor saved her dower, but the first English statute which declares that the jury need no longer enquire what goods and chattels were possessed by a felon is 7 & 8 Geo. IV. c. 28, s. 5. Branding on the forehead those condemned ' In Ludum vel in Metallum,' is prohibited in Cod. Theod. Lib. ix. Tit. 40, c. 2. Tit. 12 is p_ 20 the ' De emendatione Servomm ' of Constantine. The Smcerning"^ ' SEBvitia immanium barbarorum,' to which he there refers, slaves. ^11 |jg found without difficulty in the ' Ancient Laws and Institutes of England,' passim. The class compared with the feudal villeins is that to which the names ' coloni ' and ' tributarii ' are given in the Codex Theodosianus. P ji. The term ' adscriptitii,' with which the readers of the earlier Se'Theo-"^ English law books are well acquainted, is also sometimes dosian Code applied to thcsc ' coloni.' Their condition, as described in concerning tne ^^ ' laUivLm^o! ^^^ *^^*' "^^y ^^ learned from Lib. v. Tit. 9, Tit. 10, and ia"nd.™ ' Tit. II. The landlords of these ' coloni ' in the provinces were originally, it may be inferred, the ' decuriones.' It is in all probability no mere incidence that in the Roman army there were also ' decuriones,' who were cavalry officers of high rank. The ease with which land could be alienated, or a particular interest in it granted away, and the position of the- ' emphyteuta,' who might be called a perpetual lessee, are subjects to which reference is made again and again in the Theodosian Code. That the ' possessores,' as well as other persons of substance, had to contribute towards the repair of roads and walls is apparent from the Cod. Theod. Lib. xv. Tit. i, c. 34, and Tit. 3, Lib xi. Tit. 17, Laws concern- c. A, and Other passagcs. That they were compelled to ing the colonial ^' /-, • < t~. • courts. serve m the ' Curia ' as . Decuriones,' is made thoroughly manifest in Lib. xii. Tit. i, 'De Decurionibus,' the 192 chapters of which abound with information concerning these ' curiales.' CHAP. I.J REFERENCES AND- NOTES. 429 Curiously enough, too, a letter addressed by the Emperor Constan- tine ' ad Pacatianum Vicarium Britanniarum ' (Lib. xi. Tit. 7, c. 2), not only serves to show that Britain was on the same footing as proof that other parts of the empire, but assists in determining the exist°ed°in'^ functions of the ' decuriones ' as revenue officers. Bmam. The exemption of the ' decuriones,' ' omni corporalis contumeliae timore,' appears in Lib. xii. Tit. i, cc. 39, 47, and many other passages. The nomination of wealthy plebeians to fill the office of ' decurio ' is enjoined in c. 53 ; of merchants, provided they were landowners, in c. 72 ; and of plebeians who were ' agro Ytl pecunia idonei,' in c. 133. It is too well known that ' collegia ' of certain craftsmen as well as rehgious ' collegia ' existed- from a very early period for any reference in proof of the fact to be necessary. The practice of joining a pp. 23-25. ' collegium' of 'fabri,' or of ' fabricenses,' to avoid service as a higRoman""" ' decurio,' is mentioned in Lib. xii. Tit. i, cc. 62 and 81. ^Sfv^ooi The precise character of these ' collegia,' as of others men- ^^t'tcd^m tioned in Lib. xiv. Tit. 8, it is not easy to ascertain ; it is Britain, sufficient to know that they existed, and their existence in Britain is proved by an inscription found at Bath, in which is mentioned a ' Collegium Fabricenaum' by two found at Middleby, in which are mentioned ' Collegiac^igniferorum,' and by one found at Chichester, in which is mentioned a ' Collegium Fabrorum.' These inscriptions have • been printed in the ' Monumenta Historica Entannica,' at pages cxii. cxviii. and cxix. respectively. The ' Collegia oJSigniferorum ' were of a religious character, and may perhaps be identified with the ' Collegia Den- drophororum' mentioned in the Theodosian Code, Lib. xiv. Tit. 8, c. r. Pubhc works are the subject of Lib. xv. Tit. i. In chapters i and 14 will be found the decrees against removing the ornaments from one city to another. The description of a journey in Roman Britain may be justified by the remains of Roman roads still existing, by the list of roads and of towns given in Antonine's ' Itinerary' ('Monumenta Historica pp 25-26. B ritannica') pp. xx. -xxii. , and by the remains of Roman towns ^e' descripSo n and Roman villas which have already been brought to light. ?^ RJ^aJT^^ It would be tedious to give a list of the Roman villas known P"'ain. to have existed in Britain ; but, to show that they did exist in great numbers, reference may be made to descriptions of them in the 'Archs- ologia,' vol. viii. pp. 363-376; vol. ix. pp. 137-138, and 319-322; vol. xiv. pp. 62-68 ; and especially to vol. xviii. pp. 112-225 (description of villas in Gloucestershire, with plates of pavements and pillars) ; pp. 203-221 (description of villa at Bignor, with plates of pavements) ; vol. xix. pp. 177-178; (further account of villa at Bignor); and pp. 178-183 (villa at Great Witcombe remarkable for the perfection of its 43° APPENDIX. [chap. i. baths). The'state of the arts in Roman Britain is still better shown by the plates in 'An Account of Roman Antiquities discovered at Woodchester, in the County of Gloucester,' by Samuel Lysons, F.R.S., &c., and by the , plates in the 'Reliquiae Britannico-Romanae,' published by the same author. It is hardly necessairy to adduce proof that Romans travelled in carriages with post horses or mules from the days when Horace said, (Sat. i. V. 86) ' rapimur rhedis ' downwards. That, however, ■ °^' the use of horses was, under the empire, permitted only to persons of certain rank is apparent from the Cod. Theod. lib. ix. Tit. 30 ; ' Quibus equorum usus concessus est aut denegatus.' The provisions were made for Italy, but it may be inferred that they applied a fortiori to remote provinces. The mention of a mint may be justified by the Roman coins, with marks indicating the British towns at which they were struck. The approach to a Roman villa and. its gardens are described from Pliny (Epist. ii. 1 7, and v. 6) — the villa itself from a comparison of the remains found at Bignor, Woodchester, &c. (Lysons ' Wood- Eva'ence for chester,' and the paper in the ' Archseologia ' already men- of\ viSS™ tioned), with Pliny's account of his own villas, and with the more perfect remains discovered at Pompeii {see Sir William Cell's ' Pompeiana,' passim). The Bignor, Woodchester, and Witcombe villas alone, however, furnish so many of the details — the fragments of pillars and of pavements, the baths and the hypocausts — that it is unne- cessary to travel beyond them, except for explanation. What has been spared in Britain is at least as magnificent as that which corresponds to it at Pompeii. When the pavement and the pillars are known, the frescoes and the gardens can easily be inferred. An essay on the condition of free Roman women under the empire would be out of place in this work. It must sviffice to state, in proof of what is advanced in the text, that their position was by no Note on the means unenviable (as compared with that of barbarian condition of . . ,, ... i ,i j women under womcu) cvcn m those eanicr days when they were under mpire. , futela ' and that the ' Tutela muliemm ' itself was no longer an existing institution when the Theodosian Code was compiled. The code shows great tenderness towards the wives even of criminals, and a laudable desire that innocent women should not be impoverished through the crimes of their husbands. The love of the Roman women for dress, and the use made by them of false hair, are well known from the writings of the satirists, and from the representations wliich re- main. The position of a Roman Governor in Britain, and his estabhshment, with the cyncBgiiim and every other evidence of the Roman organisation, are shown in the 'Notitia.' The part relating to Britain is printed in CHAP. I.J REFERENCES AND NOTES. 431 the ' Monumenta Historica Britannica,' pp. xxiii.-xxiv. The words and thoughts attributed to Pacatian, 'Vicarius Britanniarum ' (Vice-gerent under the Governor of Gaul) are, it is beHeved, in accord- p. 3,. ance with the events and the sentiments of his age (about ^sUion°of'the A.D. 319). After the death of Constantine, the condition^of ooremorin Britain must have been less happy, and the incursions of Britain, the barbarians became formidable. Before that time Britain, like the rest of the empire, was agitated by the rival claims of men ambitious of the piu^ple; but it was not till a little later that the quarrels and the brigand- age which always follow the disintegration of a military power began to prepare the way for Picts and Teutons. The prediction, put into Pacatian's mouth, that an edict forbidding Romans to teach barbarians the art of ship-building would issue too late was verified in the year 419, when those were declared Note (with guilty of a capital offence who ' conficiendi naves incognitam imperiai'edSt ante peritiam Barbaris tradiderunt ' ( Cod. Theod. Lib. ix. ^'bl^barfalis Tit. 40, c. 24). This referred apparently to the Eastern to buUd ships, empire. Some of the barbarian dwellers on the shores of the German Ocean seem to have been acquainted with the art of sailing as early as the time of Carausius (towards the end of the third century). The belief of the Romans in witchcraft is, in its details, so marvel- lously like the belief of the English as late as the seventeenth century, that it might well form the subject of a narrow-minded essay pp on the descent of English from Roman customs. To those ^ifflfsi™ ""at who have passed years in the study of races, and their origin, superstitions, the similarity appears simply as a link in the chain of superstition which encircles the earth, and binds together the human beings of all countries. It would, of course, be just as great a proof of ignorance to assume that English superstitions have descended from Roman superstitions exclu- sively as to assume that every resemblance between an English institution and a Teutonic institution necessarily proves identity of race. The wider the range of investigation the more valueless are such arguments shown to be. To use the language of science, differentiation is in pro- portion to civilisation ; the more uncivilised tribes are, the more they resemble each other in their habits and manners. If an opinion be only ancient, it can be traced to half-a-dozen different sources with equal plausibility ; this one in particular is as probably Teutonic as Roman, as probably Roman as Teutonic, and not less probably common to all the earlier inhabitants of the island. But as Rome possessed a literature before Germany possessed a town, it is to Rome that we are indebted for the first minute account of the powers attributed to a witch by any of the more western nations. Horace, besides many other mentions of her name, addressed two of his Epodes to Canidia (Epod. 5 and 17. See also Sat. i. 8). 432 APPENDIX. ICHAP. 1. The dread entertained by the Roman veterans of the supernatural Pp. 33-34. power possessed by the Druids, and the omens which Evidence con- preceded the revolt of Boadicea, are mentioned by cermng super- ^ Horace ^Tad '^^citus ('Annal.' xiv. 32). Pliny ('Hist. Nat' xxx. 4) tus, pimy, and sDcaks with horror of the extent to which magic was the Theodosian . , . . n i - -x i Code. practised in Britain m his time; and there is no doubt that his words convey, if not the truth, at least the common belief in Rome. The punishment of sorcerers by fire, and by the other more cruel punishments, is the subject of Lib. ix. Tit. 16, of the Theo- dosian Code. The superstitions of the pagan world, and their effect upon Christi- anity in the times of Tertulhan, Origen, and Euseblus, are so con- Pp- 33-38- spicuously brought to notice in the works of tliose authors, Se Early''"'" ^'^''- ^ Selection of particular passages for reference is hardly S"eKtitions''° necessary. For the teaching, however, that the Roman with which spectacles had their origin in idolatry, which was equivalent musthavebeen to the worship of dcmons, it will suffice to refer to TertuUian, infected when . . , ,_,._. first introduced ' Dc Spcctaculis,' IV. et scq. Origen s belief m charms for putting demons to flight is to be found ' Contra Cekum,' i. 22, iv. 33, 34, &c. His identification of demons with the heathen gods, and his doctrine that they hovered in the air above the earth, that they licked up the blood of sacrifice, and that they could be fettered by die devices of magic, will be found ' Contra Celsum,' v. 46, and vii. 5. In the same work, too (viii. 36), and in the ' De Oratione' (11), is the far more attractive description of Guardian Angels. That Christianity, when first introduced into the British islands, contained a mixture of doctrines such as is to be found in the writings of these Early Fathers, may be inferred almost to demonstration. A cease- less communication between all parts of the Roman empire was kept up by the military system. The British recruits went with their legions where necessity called them ; and legions recruited from almost all parts of the known world were stationed in Britain. Every form of religion thus found its way to Britain as to Rome. There is, indeed, a silly fable in Bede's ' Ecclesiastical History ' to the effect that Pope Eleuthems sent a siiccessful mission to convert an imaginary British King Lucius. It is but a clumsy plagiarism of the story of Augustine and the King of Kent. Its falseness may be'shown by facts which also prove the composite character of the Christianity existing in the British islands before a pope seriously determined to attempt the conversion of our forefathers. The difference between the Scottish and Roman methods of cele- brating Easter, which was brought into prominent notice in tlie latter half of the seventh century-, is described by Bede ('Hist. Eccl.' iii. 25.), CHAP. I.] kEPERENCES AND NOTES. 433 who might easily have learnt the particulars. This would have been impossible had Britain accepted its Christianity from Rome in the second century. The pope Eleutherus, who has been named as the contempo- rary of Lucius, lived many years after the first Paschal controversy ; and Anicetus, one of his predecessors, had already argued with Polycarp against the celebration of the Christian festival simultaneously (as some- times occurred in the Scottish Church) with the Jewish Passover. The observances which the Romish priests anathematised in Britain, centuries after the time of Eleutherus, could not have been derived from Rome; nor, on the other hand, can they be traced exclusively to converted Jews, to any of the Asiatic Churches, or to Alexandria. They appear to have differed in some respect^ from those of every other Church, and to have been dependent on no particular authority. The various passages in Greek and Latin writings, in which reference is made to Christianity in Britain, have been collected in ' Councils and Ecclesiastical Documents relating to Great Britain, &c.,' by Messrs. Haddan and Stubbs. They 'prove, however, only the bare fact that Christianity in some form was known in Roman Britain. The intermixture of customs disclosed by the Easter controversy in Britain had, without doubt, its counterpart in a similar intermixture of superstitions such as was to be found throughout the Christian world in the third century. The statement in the text, that we know Httle or nothing of the super- stitions brought by the Teutonic invaders into Britain, may, perhaps, seem strange to the admirers of the Eddas. But this history is Pp- 37-38. . , . . , , ... Note on the written on the prmciple that only contemporary evidence is statement that to be accepted ; and a collection of Scandinavian myths what snpersti- made at the end of the eleventh century, cannot, in any troducedVy" historical sense, throw light on the Teutonic superstitions Invaders!™"^ of the fifth. The poem of 'Beowulf (edited by Kemble), it is true, supplies here and there a link, but not enough to construct a chain of any strength. The principal evidence of the superstitions existing in England between the time of the conversion of our forefathers to Pp- 38-41- Evidence of Chnstianity and the Norman Conquest is to be found m the thesupersti- ' Ancient Laws and Institutes of England,' edited by Mr. land after the Thorpe, and in the ' Saxon Leechdoms,' edited by Mr. Cock- Augustine, ayne for the series of Chronicles, &c., published by the Master of the Rolls. In order to avoid the use of the pre-Norman letters in printing, and at the same time to attain precision, ' the spelling of proper names which appears in Mr. Thorpe's modern English headings to 'Ancient Laws ' has been adopted in references made to that collection. It may seem inconsistent to mention ' Canute ' in the text, and to refer else- VOL. I. F F 434 APPENDIX. [chap. I. where to the laws of King ' Cnut' But the reason for referring to the Note on the laws of King ' Cnut' is the same as the reason for writing pr^N^rman °'^ ' Canute ' in the text— that every one may understand what is names. meant. ' Canute ' is, in the plain English of the nineteenth century, the name of a Danish king who once ruled in England ; the tech- nical description of a certain source of information, as printed in the best edition, is the 'Laws of King Cnut.' A long dissertation on the or- thography of the pre-Norman names which occur in the history of England would be out of place, and the subject is of little importance. It seems, however, sufficiently clear that ' Alfred ' is to be preferred to './Elfred,' 'Edward' to ' Eadweard,' 'Canute' to 'Cnut.' 'Alfred,' ' Edward,' and ' Canute ' are names familiar to every one, and are good English, inasmuch as they'appear, so written, in the works of classical English historians. ' Alfred,' ' Eadweard,' and ' Cnut ' are forms to be found in MSS. of early date, but the spelling in such MSS. is not uniform. There is good MS. authority for ' Eadward,' as well as for 'Eadweard,' and for 'Eadwerd' as well as for 'Eadward.' Alfred, indeed, was almost always written ' Alfred ' before the Conquest, but before the Conquest ' ecclesia ' was almost always written ' secclesia.' It is therefore as correct and as incorrect to write ' ./Elfred ' for Alfred as to write ' secclesiastical ' for ecclesiastical. If we are justified in draw- ing any inference at all concerning the character a as used in England before the Conquest, we are justified only in drawing the inference that it was equivalent to one value of the Latins, which was equivalent to the Greek e. The character a, as used in modern English type, ordinarily re- presents, not a short vowel like the Latin e and the Greek e, buta diphthong compounded of the two letters a and e. If, therefore, the commonly received spelling of Alfred is to be altered, the name should become rather Elfred than Alfred. Accuracy even in trifles is commendable, and scholarship is a handmaid useful to history ; but the substitution of './Elfred' for Alfred, of 'Eadweard' for Edward, and of 'Cnut' for Canute is a change which scholars will not unanimously accept as an aid to accurate writing. Archbishop Theodore's Book of Penance, xxvii., in the 'Ancient Laws, &c.,' shows the belief in the power of human beings to raise storms Pp. 38-41. and commit other iniquities by the aid of demons or false thelupfrstf pagan gods. This document (as explained in the Preface SitoAie to ' Councils and Ecclesiastical Documents relating to Great t^pk^l Britain, &c.,' edited by Messrs. Haddan and Stubbs) is (Continued.) probably of later origin than that assigned to it ; but if so, it only shows more clearly the persistence of superstitions. An ordi- nance for the expulsion of 'heathendom,' at the end of the tenth or beginning of the eleventh century, will be found in the ' Laws of Kin" CHAP. I.] REFERENCES AND NOTES. 435 Ethelred,' v. i. Still later, ' heathenship ' is defined, in the Secular ' Laws of King Cnut,' 5, as the worship of heathen gods such as the sun, moon, wells, stones, and trees. After the evidence from the early Christian Fathers, it is hardly necessary to adduce any further argu- ments in support of the proposition that these superstitions are in no way distinctively Teutonic. The passage in Tac. ' Germ.' 16, in which it is stated that the Germans live where a spring, or a grove, or pasture may invite them, refers obviously to the facilities for getting . such neces- saries as water, wood, and fire ; and there is nothing in the context to suggest any other interpretation. Had superstition been studied as a common affection of humanity, the words would never have been per- verted (as they often have) to establish a theory that every custom and every institution can be traced exclusively to one particular race. A fair case might indeed be made out for the derivation of all later super- stitions from those existing in Britain during the Roman period, but this would be a narrow and unphilosophical view. That they would all have existed, had there been no Low German invasion, is certain ; that many of them would have existed had no race preceded the Teutonic, is pro- bable. Any argument from such materials in proof of descent must therefore be a waste both of time and of ingenuity. To return, however, to the evidence of the superstitions existing in England before the Norman Conquest, the ' Liber Poenitentialis Theo- dori ' and the ' Pcenitentiale Ecgberti ' abound with illustrations none the less valuable if, as Messrs. Haddan and Stubbs maintain, the so- called ' Penitential ' of Egbert is, like that attributed to Theodore, of later date than has been assigned to it. Penances for the practice of magic by priests are to be found in the ' Lib. Pcen. Theod.,' xxvii. 8, 10, and in the ' Poenit Ecgb.,' iv. 18. Witchcraft practised by women is mentioned in both those treatises, and in some of the secular laws ; but the behef in the power of witches to kill their victims appears most plainly in the ' Confessionale Ecgberti,' 29. The behef that persons suffering from mental derangement were pos- sessed by devils appears in numerous passages in the 'Saxon Leechdoms,' and especially in vol. ii. pp. 352, 354, 356, where charmed remedies for the expulsion of the intruders are carefully described. Christian charms for finding what has been lost, and other purposes, are to be found in the same collection, vol. i. p. 392, vol. iii. p. 288, &c. The use of the ' Pater Noster ' and ' Credo ' as charms, is distinctly recommended also in the ' Pcenitentiale Ecgberti,' ii. 23. The custom of accepting cattle and sheep as a satisfaction for a human life is attributed to the ancient Germans by Tacitus (* Germania,' 21). There is not the slightest reason to doubt his statement, as it is con- firmed by the subsequent laws of the Germans in all the provinces of 436 • APPENDIX. [chap. i. the Roman empire which they overran. When they became acquainted with money, they received it, instead of live stock, as com- EvideJce of pensation, but in other respects the custom remained un- mai°maSre';s changed. The practice could not, like many others, have and customs. ^^^^ adopted by them from the Romans, who had at least advanced far beyond that stage of barbarism. The other details of German manners (given at the same page) are from the ' Germania,' cc. 5, 12, 22, carefully compared with the passage in Caesar, 'Bell. Gall.,' vi. 22-23, which seems to be founded on very accurate information, and clearly indicates that the writer had know- ledge of the Teutonic tribe within its Mark. The assertion in the text that the family feud and the system of composition for murder are common to various tribes, and in no way Pp. 42-4.3. exclusively characteristic of the speakers of Teutonic or riie"biood-fa?d ^^^"^ °f Aryan languages, may be easily proved. There are tcT va?S"s°" numerous passages in the ' lUad ' and elsewhere which show races. what was the practice in the Homeric age, and perhaps con- siderably later. The scene delineated on the shield of Hephaestus is, perhaps, as good an illustration of manners and customs as could be desired, and occurs in ' Iliad,' xviii. 498. Should further confirmation be required, it is to be found in ' iHad,' v. 266, xiii. 659, xiv. 483, &c. In the Welsh Laws of Hoel Dda payments for murder are as fully re- cognised as even in the Teutonic laws. See ' Ancient Laws and Insti- tutes of Wales ' (Record Com.) passim. In them the Welsh word ' galanas ' is seen to be exactly equivalent to ,' murdrum,' i.e. to repre- sent both the deed and the fine for it. The claim of the kindred is also everywhere recognised. The ' Ancient Laws and Institutes of Ireland — Senchus Mor ' (published under the direction of the Commissioners for publishing the ' Ancient Laws and Institutes of Ireland ') show also the existence in Ireland of the institution of the fine for murder, and the liability of the kindred. Seeyoi. i. pp. 185, 189, 259, 273 ; and vol. ii. p. 285. The blood-feud among the Jews is mentioned in Numb. xxxv. 21, Deut. xix. 6, Josh. xx. 5, &c. The custom of setting a price upon a human life is intimately connected with the recognition of slavery, which, as is well known, is almost universal among barbarous and semi- barbarous tribes. According to Lady Mary Wortley Montagu, it sur- vived in Turkey in the eighteenth century with some customs nearly related to slavery, and, perhaps, survives there still. ' Murder,' she says, 'is never pursued by the king's officers, as with us. 'Tis tlie business of the next relations to revenge the dead person; and if they like better to compound the matter for money (as they generally do), there is no more said of it.' ('Letters and Works of Lady M. W. Montagu,' edited by Moy Thomas, vol. i. p. 363-) CHAP. I.] REFERENCES AND NOTES. 437 The introduction of composition for murder by the Teutonic tribes in countries in which they adopted the Roman ^ . 1 . - . Pp- 44-46- law, or permitted it to exist, is well illustrated by docu- Evidence that _, . , , _, , . , , .... _, , It was conti- ments in Savignys ' Geschichte des romischen Rechts nuedbyTeu- im Mittelalter,' vol. ii. pp. 13-19- (Heidelberg edition). • ™"^ onquMt. Theexistence of the custom in England before the Norman Conquest is so well known, and is established by such abundant evidence, that it is only necessary to refer to the ' Ancient Laws and Institutes of England ' passim. The statement in the text that Britain is lost or nearly lost to history from the end of the Roman period to the end of the seventh century, may excite surprise in those who have not criticised the writings of the intervening period which have been Note o" tke called historical. I have in another work given my reasons anceofEng- . . . ,_,. ., land in history. for distrusting the evidence to be found in any of them. The laws, some of which may be of the earlier part of the seventh cen- tury, are, of course, most valuable as far as they go. The commutation of penances is illustrated in the ' Ecclesiastical Institutes,' which constitute the latter portion of the ' Ancient p _ ^ Laws and Institutes of England ' — in the ' Liber Pceniten- Ref rcnces *^ concerning the tialis ' and in the ' Capitula' which are there attributed to commutation . . . . of penances. Archbishop Theodore, and m the similar compilations of later times. Further light is thrown on the subject in Cockayne's 'Saxon Leechdoms,' vol. iii. p. 166. The distinction between the freeman and the slave in pp. ^8-49. the enjoyment of facilities for religious observances ap- rt,e'^dis't°Mti'ifn pears in many of the 'Ancient Laws,' &c., but is most ^e^lnd slaves clearly shown in the 'Laws of King Alfred,' xliii.,in which '" England. are mentioned the hohdays enjoyed by freemen, but denied to slaves. In all the 'Ancient Laws,' &c., it is apparent that the punishment of mutilation was, as a rule, inflicted only on the churl and the slave. As might have been expected, the punishments vary some- p what in various reigns, but show no progress towards Laws con- humanity. The most severe are to be found in the ' Laws punishment of ' ^ slavesandfree- of King Alfred,' the ' Laws of King ^thelstan,' the ' Laws men in Eng- of King Cnut,' and the ' Leges Regis Henrici Primi.' It is in the last collection that flaying ( ' excoriatio ' ) is mentioned as a punishment (Ixxv. i), but there is some doubt about the reading. The exact date of these laws and their sources are uncertain, but it is probable that they were compiled after the reign of Henry I., certainly not before it ; and they exhibit all the ferocity of the earlier laws in existence before the Norman Conquest. By most of the laws compensation was permitted in the case of theft, but in the ' Laws of King .(Ethelstan ' 438 APPENDIX. [chap. i. death was the penaUy both for freeman and for serf. In them (iii. 6) are found the brutal punishment for free women, the stoning of the male serf, and the burning of the female by other females. The summary infliction of death on thieves detected in the act appears in the ' Laws of King Wihtraed,' 25-26 ; in the ' Laws of King ^thelstan,' i. i, &c. • The ordeals by water and hot iron are frequently mentioned in the various ' Ancient Laws and Institutes.' The description, given in the Pp. 52-ss. text, of the mode of proceeding is from the ' Laws of King Pn^the™"'"" ^thelstan,' iv. 7. The ' corsnsed,' by which the monks Ordeal. cleared themselves, appears in the ' Laws of King Ethelred,' ix. 22, 24, and in the 'Laws of King Cnut,' Ecclesiastical, 5. The origin of this test may, perhaps, be traced to the well-known effect of fear, or other strong emotion in paralysing the salivary glands, and so checking deglutition. In the last-named law is mentioned also the purgation by simple oath on the ' housel.' Compurgation, as applied to the clergy, is, to a certain extent, explained in the same place, and, as applied to the laity, in the ' Laws Pp. 55_57. of King Ethelred,' i. i, and the ' Laws of King Cnut,' S^n^Com™" Secular, 30. The matter, however, is somewhat obscure, f"reM™ll? The form of oath is, in the 'Ancient Laws and Institutes,' trial by Jury, among the ' Oaths ' of which the date is uncertain. First of all the accused swears (5) ' By the Lord, I am guiltless, both in deed and counsel, of the charge of which N. accuses me.' Then each compurgator swears (6) 'By the Lord, the oath is clean and un- perjured which N. has sworn.' In the latter case ' N.' stands, of course, for the accused. The functions of the early jury, compared in the text with those of the compurgators, are best ascertained from a study of the ' Rotuli Curiae Regis,' which begin in the reign of Richard I., and of which the earliest have been edited by Sir Francis Palgrave, and pub- lished by the Record Commission. The history of juries is, however, further discussed in Chapter II., etc. The view propounded in the text that the guild and the peace-union, or peace-pledge, were but different developments of the same institution, Pp. S7-58. is not, perhaps, precisely that of any other author. It Laws concern- , ^ . .. .,, ._ .. ing the Guild seems, howcvcr, to be consistent with the evidence, and is lofic^e%stem'r in harmony with contemporaneous and later events. The guild is first mentioned by that name in the ' Laws of King Ine,' 16, in which it might be supposed to be the social or voluntary guild, but that the laws among which reference is made to it are of a public charac- ter. The original is not less obscure than the English translation which follows : — ' He who slays a thief must declare on oath that he slew him offending; not his guild-brethren.' It might even refer to the practice of swearing together, which was not to be enforced when there was only CHAP. I.J REFERENCES AND NOTES. 439 a question of killing a thief. From this passage alone, however, which is so vaguely worded, it would be unsafe to infer much. But the word ' gegildan,' correctly, perhaps, translated ' guild-brethren ' in the instance in which it occurs in the ' Laws of King Ine,' has most undoubtedly that signification in the ' Laws of King Alfred,' 27, 28 : — ' Of kinless men. — If a man, kinless on the paternal side, fight and slay a man, let the maternal relatives, if he have any, pay a third of the "wer," his guild- brethren a third, and for a third let him flee. If he have no maternal relatives, let his guild-brethren pay half, and for half let him flee. If a kinless man be slain, let half the "wer " be paid to the king, half to the guild-brethren.' In these laws it is quite clear that the 'gegildan' have a responsibility similar to that of the tithing or hundred in later times, and that they also have a privilege of receiving compensation similar to the privilege of the family. It is not difficult to perceive here the identity, in origin, of the social or voluntary with the political or compulsory guild. Among the ' Laws of King Edgar ' is an ' ordinance how the hundred shall be jheld,' in which the tithing is mentioned by name. It is quite evident that the members of the tithing and the hundred Pp. 58-60. mentioned m this mstrument, have precisely the same References ... . concerning the responsibilities and advantages as the ' gegildan ' mentioned Guild, the • , ,. , 1 ■ r ; , Tithing, the m the earlier laws, and are, in fact, so far as the common- Hundred, and wealth is concerned, the same body under another name. In the same collection (ii.) it is ordained that every man shall have a ' borh ' responsible for him. The ' fritS-borh ' (peace-pledge), however, can historically be identified with the frank-pledge of Norman times, which again can be identified with the ' decenna,' ' dozein,' or tithing. It is therefore not too much to assert that the guild is the foundation of the whole system of police which prevailed before the Conquest. This view seems, too, to be confirmed by the ' Laws of King .^thelstan,' v. — ' Judicia Civitatis Lundonise.' The remarks in the text upon the relations of the hundred and the manor to the tithing are founded upon the ordinance in the ' Laws of King Edgar' concerning the holding of the hundred, and upon the similar passage in the laws attributed to Henry I. (vii. and viii.), com- pared with the ' Rotuli Hundredorum,' and the ' Placita de Quo Warranto' (passim) as published by the Record Commission, and with innumerable unpublished records in which the ' visus franci plegii ' is mentioned as belonging to a manor. Nothing, perhaps, more clearly shows the practical identity of the Hundred Court with the Court of the Manor in some matters than a passage in the Inquest of Sheriffs, a.d. 1 170 (printed in Stubbs' Select Charters from the MS. Bodl. Rawlinson, 641). Mention is there made of those who hold the ' Hundreds of the 440 APPENDIX. [CHAP. I. Barons.' The expression refers to Hundred-Courts, the profits of which are held by Barons from the king, either 'ad firmam,' or ' in custodia.' The Court of the Manor, in one of its aspects, was, as is well known, called ' Court Baron.' The care with which the Danes were anxious to enforce the Law of Peace-Pledge appears in the ' Laws of King Cnut,' Secular, 20. Instances of voluntary guilds existing before the Norman Conquest will be found in Hickes' ' Thesaurus Antiq.' Sept., vol. i., Dissertatio Pp. 61-S2. Epistolaris. See also Kemble's ' Codex Diplomaticus,' «rn1Sg°vo1uSl No. 942. A translation of the rules ■ of these pre-Norman tary guilds. guilds is given in Mr. Kemble's 'Saxons in England,' vol. i,, Appendix D. The Massacre of the Danes is recorded in the ' Anglo-Saxon Pp. 62-64. Chronicle,' anno 1002 ; and in the same year there is a good Sl^ning^lssTst example of the assassination of magnate by magnate, and of ination. ^j^g 'jnanner in which the deed was regarded. The existence of guilds of burgesses in towns in England before the Norman Conquest is shown by Domesday Book (as -photozincographed). Pp. 64-63. K:ent, p. I, ' In Dovere . . . erat Gihalla Burgensium,' Kesdly"^ and p. iii., ' In Civitate Cantuaria . . . burgenses habe- SY°of ^ ^a°*^ ^^ ^^S^ xxxiii acras terre in gildam suam.' The remark burgesses. jn the tcxt concerning gold-workers in England is founded not only on some passages in the Chronicles, but on the more trust- worthy evidence in Domesday, where the mention of them is so frequent as hardly to require a particular reference. The facts given in the text respecting the names of towns will not be disputed, and require but Httle further comment. The names prevaihng Pp 66-73 before the Conquest (the 'ceasters,' etc.) will be found in the Note on the < Anglo-Saxon Chronicle,' or in the works of Bede, passim. names and ^ ' ^ ^ °"d"h°r '"""^ Modem chesters (including the forms caster, caistor, etc.) to the number stated in the text, or beyond, may be found by a study of the Population Abstracts," or of any work which gives the names of places with some minuteness. The Roman ' colonia' of Lindum gave its name not only to Lincolnshire, but, perhaps, at an earlier time to Lindsey, as a portion of that county was once called. It is only necessary to add that the identification of ' York ' with ' Eburacum,' which may seem rather forced, is not a conjecture, but can be estabHshed through, successive stages. Eburacum becomes in the language of the Teutonic conquerors Eoforwic, both the b in one case and the / in the other being equivalent to our v. They; as in Leofwine (Lewin), and in- numerable other instances, is, in pronunciation, softened into w. Eoworic is then plainly enough no other than York. The most enthusiastic advocate for the continuance of the Roman towng is Mr. Coote in his CHAP. I.J REFERENCES AND NOTES. 441 • Neglected Fact ' in English History ; the most enthusiastic on the other side is Mr. Kemble, in the chapter and appendix on towns in ' The Saxons in England.' The remarks at p. 71 of the text do not require the support of authority in this place. The facts on which they are founded are obvious to every one ; and where a city has a tradition concerning its foundation, the robber or the soldier (whichever title may be preferred) always plays a part in it. The derivation of the name of the shire from the name of tlie town, in the majority of instances requires no further proof than a reference to any map of England. The ancient German mode of life in huts, but not in ^ p- 73- , Evidence of towns, IS described by Tacitus ('Germania,' 12, 15, 16, 21, 22, the ancient .. . T-, , German mode etc.). No details have been introduced into the text for ofUfe. which there is not his authority. Ignorance of the use of coin among those Germans who were at a distance from the Roman frontier is shown in Tac. ' Germ.' 5, Though the amount of the ' wer ' was commonly estimated in money in England, it is evident that the Teutonic conquerors Evjencecon- . . cerning the brought the pnmitive custom of barter with them, for it is early use of provided, even in the ' Laws of the Conqueror ' (i. 9), that the ' wer ' may, if preferred, be paid in the shape of horses or bulls. It appears by the ' Laws of King ^thelstan,' i. 14, that there were in his time moneyers in all the chief towns — more or less according to the magnitude of the place. The trinoda necessitas of the allodial tenure is so familiar -^^^^ ^^- ^^ to all students of history that there is no need to give and wails by authorities in proof of its existence in England or else- seuieS"™''^ where. The adoption of the Roman roads with the Roman term for a paved way, ' strata,' is known to every one who has heard of Watling Street, Ermin Street and Icknield Street. There is, perhaps, no greater tes- timony to the permanence of Roman influence throughout Europe than is to be found in the word ' Street,' appearing at every comer of every town in England, and in the word ' Strasse,' which has travelled with Roman arts to parts of Germany which were inacessible to Roman arms. The pages upon the early tenure of land, and its modification by the position of the towns, were written after the con- jjS'aLd'evi- ■ sideration of a vast mass of evidence. The ancient German f ^^TVu^onk"' custom is established by Tac. ' Germ.' 26, which passage ,\°^/jj^°;,^'^™ represents the Germans as being but little advanced beyond ^^"^''^J.'^yg),^ the point they had attained in the time of Cfesar. See in England. 'Bell. Gall.' vi. 22. 442 APPENDIX. [chap. i. The partition of the Promised Land among the Israelites by tribes will be familiar to every one. The agrarian disputes and laws of the Roman Republic show the existence in Italy of land analogous to 'folc-land.' The - illustration from modem Indian villages, m which Aryan dialects are spoken, is from Sir Henry Maine's ' Village Com- munities in the East and West' The work contains information from the far East which is of great assistance in the investigation of the early tenure of land. See especially Lect. iv. It is after consideration of the information given in these books, of the dissertation upon the Teutonic Mark in Mr. Kemble's ' Saxons in England,' of the explanation of folc- land and boc-land in Mr. Allen's ' Inquiry into the Rise and Growth of the Royal Prerogative in England' (pp. 125-155, edition of 1849), ^.nd of certain facts which must be obvious to every one, that the statements in the text are put forward. The view taken is not precisely that of any one of the authors mentioned, but it may be hoped that it is not incon- sistent with the evidence adduced by them or found elsewhere. L The word Mark (mearc), in the sense of land-mark or border, occurs frequently enough in the early laws and charters, and is familiar to every p. yy one as the Marches and as Mercia. As the boundary not of dlnce rancern- kingdoms in the modem sense, but of smaller territories, it ingthe'Mark.' Qccurs in many of the documents printed in Mr. Kemble's ' Codex Diplomaticus,' in the ' Laws of Hlothhsere and Eadric,' 15, and in the ' Laws of King Wihtrasd,' 8. That its original meaning was simply a border may be inferred from the cognate Latin word ' margo.' The private jurisdiction of the land-holder was commonly known, after the Norman Conquest, as ' sac, soc, tol, team, and infangentheof,' all of wlych may have belonged to the tribe within the Note on pn. Mark. The 'fossa' and 'furca' are commonly mentioned donVin'the"^ among the appurtenances of manors, and were obviously coun ry. nccessary adjuncts to ' infangentheof,' or the right of judging thieves caught on the manor. The fact that possession by a lord had superseded the more primitive mode of tenure long before the Conquest is abundantly evident in the early laws. It will suffice to mention the ' Laws of King ^thelstan,' i. 2, in which it is provided that any man who has no lord may be slain as a thief The instances of private jurisdictions enjoyed by land-holders are so numerous in Domesday Book that to cite a few particular passages would be to weaken the proof. The private jurisdictions in towns, before the Conquest, are almost as conspicuous in Domesday as those which were enjoyed Evidence of without the walls. The ' xii lagemanni ' of Lincoln, how- &™concern- cver, some of whom were succeeded by their sons, in the jSfisSo'nsin interval between the death of Edward the Confessor and towns. ^j^g compilation of the Great Survey, were, like those of CHAP. I.J REFERENCES AND NOTES. 443 Stamford, on a somewhat different footing from some magnates who enjoyed ' sac' and 'soc' elsewhere. They resembled the twelve senior or superior thanes of the wapentake (whose functions, as will hereafter be seen, merged in those of the Grand Jury), and the ' xii judices ' of the city of Chester, who seem to have enjoyed their privileges as a body rather than as private individuals. See Domesday Book, as photozincographed (for Lincoln, and Stamford), ' Lincolnshire,' pp. i. and ii., and (for Ches- ter), ' Cheshire and Lancashire,' p. i. But for the exercise of private jurisdictions in towns by individuals in their private capacity, see (with respect to Norwich) 'Norfolk,' p. xv., where it appears that Stigand had sac and soc over 50 burgesses, and Harold over 32 ; see (with respect to Canterbury) ' Kent,' p. iii., where are mentioned five private jurisdic- tions ; see (with respect to Huntingdon), ' Huntingdonshire,' p. i, where are mentioned four private jurisdictions ; and see (with respect to Here- ford), ' Herefordshire,' p. i., where it appears that the moneyers of the city had their own sac and soc. It must be understood that these cases are not cited as a catalogue, but merely as specimens. The manner in which these powers were exercised in the towns was probably not very different from that of their exercise elsewhere. The curious jurisdiction at one time attached to Baynard's Castle is described in the 'Liber Custumarum,' part i. 149-151, ed. Riley, as well as in the ' Memorials of London,' pubUshed by the Corporation under the same editorship. Its first origin must, of course, be matter of conjecture. The extent of the jurisdiction possessed by towns in their municipal capacity is only a matter of inference. The ' burh-gemot ' was to meet three times a year according to the ' Laws of King Edgar,' pp ^^^^^ ii. 5, and the ' Laws of King Cnut,' Secular, 18, but the rip°If jurfX"' manner of its meeting cannot be ascertained. In some "™'- towns the reeve (' port-gerefa ') may have been in no higher position than that of the steward of a manor; and this condition may, perhaps, be described] by the expression 'in dominio.' London, as is sufficiently apparent from the charter of the Conqueror confirming its privileges, was not ' in dominio '; of the other towns it appears from Domesday that some were and some were not ' in dominio.' The condition of towns, is, however, further discussed at the beginning of Chapter III. It may suffice, for the present, to suggest that in lawless times lords attempted to gain complete mastery over towns, and towns took advantage of such circumstances as might favour them to recover or increase their liberties. Sometimes, too, the king may have granted his real or supposed rights of jurisdiction to a lord, either lay or ecclesiastical, as a mark of favour or with the object of raising money. , The constitution of the various kinds of ' Gemot,' or court, before the Conquest, is very obscure. In the ' Laws of King Edgar,' ii. 5, and in 444 APPENDIX. [chap. i. the ' Laws of King Cnut,' Secular, i8, it is provided that the Shire-moot is to meet twice a year under the bishop and the ealdorman. The Pp. 84-83. Hundred-moot, it appears by the ' Laws of King Edward,' 1 1, moots or courts Compared with the ' Laws of King Edgar,' concerning the b"eforetheCoii- Hundred, 1, met once in every four weeks under its reeve. It S'e ^^JoMed™ probably presented the more important cases to the superior mgs m them, shire-moot, and in this sense performed some of the functions .of the grand jury. The existence of a supreme court — apparently only of appeal — over which the king presided, may be inferred from the 'Laws of King ^thelstan,' i. 3, the ' Laws of King Edgar,' ii. 2, and the ' Laws of King Cnut,' Secular, 17. On this subj'ect there are many controverted points, but it is hardly worthy of discussion for the purposes of the present work. What may have been the judicial preliminaries to compurgation and ordeal it is impossible to determine with precision, but the excessively rude, not to say ludicrous, character of the proceedings in disputes con- cerning land is illustrated by a document pubUshed in Hickes' ' Thesaurus Ant. Sept.,' vol. i., ' Dissertatio Epistolaris,' pp. 2-3 ; and mentioned by Mr. Kemble in the introduction to his ' Codex Diplomaticus,' p, cix. A son sued his mother for certain lands ; three thanes left the court and went five miles to enquire of her concerning the facts. She fell into a great passion, and declared that she had no lands belonging to her son, and that he'should have none belonging to her. She then expressed a wish that after her death all her goods and lands should be given to a female friend of hers, and requested the thanes to make this known in the Shire-moot. So they rode back and told their story ; and the husband of the lady in whose favour this strange kind of will was made rode off to a church and had it entered in a book there. The sketch of society previous to the Norman Conquest is founded on the various documents printed in the ' Ancient Laws and Institutes Pp. 86-88. of England.' It is there made clearly manifest that the ^MrS" harac- Same Spirit of fcrocity pervaded all the laws — down even to Norma'nLaws", ^^^ *™^ °^ ^^'^ Compilation from earlier sources which is &=• attributed to Henry I., and which might be styled the ' Laws of Edward the Confessor' with as much or as little propriety as the laws commonly so called. The Laws of Edward the Confessor, for which a clamour was raised after the Conquest, were only the customs in use before the coming of the Conqueror — not a code of any particular date. This is one of many cases in which a reference to evidence taken as a whole, and in accordance with the general spirit, is better than a reference to a particular, letter selected here and there. An allusion has been made to Asser, the biographer of Alfred, who may have been Alfred's friend and companion, and whose work may really have descended to us. CHAP, i.j REFEEEN'CES AND NOTES. 445 No one, however, who is conversant with the history of manuscripts would unhesitatingly accept the Life of Alfred attributed to Asser as an unquestionable authority. It is unfortunate that the only early MSS. of this biography which are said to have existed have perished or disappeared . The genuineness of the work is of no great importance to this history, and great labour would be required to settle the point. The general character of Alfred, so far as the statements in the text are concerned, is established by his Laws and by the ' Anglo-Saxon Chronicle.' The same Chronicle and the ' Laws of King Cnut ' suggested die remarks upon Canute j the same Chronicle and the contemporary Li^ published in the 'M.R.' series, the remarks upon Edward the Confessor. The description of life attributed by Bede to the pagan chieftain just before conversion is in the 'Hist. Eccl.' ii. 13. This must be ac- cepted as a picture of rural manners at least as late as Bede's p. 87. time j and it seems fair to assume that if the laws did not pe?sfs°ence'of become less brutal during the three following centuries the raf conditions ' general riiode of life could have been but little improved. °^'''^' The monasteries, as they grew wealthier, no doubt made some progress in architecture ; new churches were built in the towns, and the success- ful merchant might possibly arrive at the rank of thane {see ' Ancient Laws, &c., of England,' Ranks, 6). But later history shows how litde progress had been made before the Norman Conquest. The position of the ' wite-peow,' or, insolvent criminal reduced to slavery, and therefore capable of stealing his own body, is described in the ' Laws of King Ine,' 24. See also the ' Laws of King pp g .^thelstan,' Prooemium. The custom of the ancient Ger- ^a°vli^bEn mans to stake liberty at games of chance is described in '*°'^- Tac. ' Germ.' 24. The ' Ancient Laws and Institutes ' abound with passages in which the sale of a Christian slave into a heathen country is forbidden ; but sale into a Christian country is not forbidden. William the Conqueror forbade sale into any foreign land (' Leg. Will. Conq.' iii. 15), and from this we may infer that the practice was still common in his time. William of Malmesbury indeed ( ' Anglia Sacra,' ii. 258) speaks of the export of great numbers of slaves, but though he lived not very long afterwards, he did not relate what was within his own knowledge. The evidence of the Laws is far more trustworthy, and is sufficient to establish the fact. The practice of buying a bride with cattle or money is regulated in the 'Laws of King ^^thelbirht,' 77-78, &c., and in the ' Laws of King Ine,' 31. In the event of the person sold becoming a widow, p half the sum given for her seems to have been set apart for Note and ev'i- .-., , 11'T T •! • dence concern- her support, provided the husband did not die without issue ; ing the practice the other half seems to have become absolutely the property ^' °" "^'°^' 446 APPENDIX. [chap. i. of the seller. Marriage settlements and dower may have been developed out of these primitive arrangements, but it is impossible to explain them away as not being in themselves a process of bargain and sale. If there could be a doubt on the subject, the provision in the ' Laws of King ^thelbirht,' 31, would set it at rest. The obligation of the adulterer to buy a new wife and deliver her to the injured husband is the best com- mentary on the nature of the nuptial contract. The incidental remarks upon the preaching and practice of the clergy are founded upon a comparison one with another of the instru- Pp. 92-94. ments described as ' Monumenta Ecclesiastica,' in the diarlcterofthe ' Ancient Laws and Institutes of England.' No statement clergy. jjg^g h^to. made for \jhich there is not ample evidence ; but the general correctness of the sketch given in the text can be estimated better by a study of the documents in general, than by verification of a few references to particular passages. The ward on the highways is described in the ' Laws of the Con- queror,' i. 28. It may have existed before the Conquest, but it is not mentioned in any of the earlier laws, and the point must, there- Note on Watch fore, necessarily remain in doubt. The responsibility of a and Ward, &c. , ' , . "' ^ , , , . -^ . . , host tor his guest after two or three days sojourn is mentioned in the 'Laws of Hlothhsre and Eadric,' 15 ; 'Cnut,'Sec. 28; 'Will. Conq.' i. 48, and ' Ed. Conf 23. Lanfranc's abhorrence of the manners and customs of his ilock will Pp. 94-95. be found in 'Lanfranci Opera,' vol. i. pp. 10-21, Letter Reference to , ^., m, -i ,11 / Lanfranc's de- No. 3, ed. Giles. The Conquered, too, hardly spoke more England, °with highly of themselves than the conquerors spoke of them, conffrmation. 5^^ the Contemporary 'Life of Edward the Confessor,' edited by Mr. Luard for the M.R. series, p. 432. CHAP. II.] REFERENCES AND NOTES. 447 CHAPTER II. The word ' Englishry ' has been used in the text at p. 96 and elsewhere to denote collectively the native subjects of the victorious Normans. It is formed after the analogy of the ' Jewry,' the ' Irishry,' the p ^ 'chivalry,' the 'Jacquerie,' &c., and is appropriate as being '^"'^Z? '^^^ ^ French in form. In the 'Presentment of EngUshry,' the 'EngUshry'in word is used in a different sense — meaning the condition of a person born of English parents. The statement that God handed over the inhabitants of England to be exterminated by the conquering Normans will be found p. 96. ■^ . , . - , Reference to in ' Henr. Huntmgd.' lib. vi. (Scnptores post Bedam, p. 367). Henry of ... . 7- \ r 1 ■ Huntingdon It IS a repetition {mutam mutandis) of the statement m concerning the ' Gildas,' that the Britons were exterminated by the invaders qu°e^™ from Northern Germany. The adoption of the principle which made the hundred responsible for the murders committed within its limits, and the restriction of the responsibility to cases of murder in which the English were p. ,8. not the sufferers, are shown not only by the Laws attributed ^emlng'the'iaw to the Conqueror, i. 22, and the Laws of Henry I. i. cxi., but ^''eSyato also by the Rotuh Curiae Regis of a later date (Ric. I., &c.). 'i»= Conquest. The diminution in the number of acts of violence and robberies, under the rigorous rule of the Conqueror, is mentioned in the compilation commonly called the 'Anglo-Saxon Chronicle,' anno 1087. It is there mentioned that a traveller might preserve his money on his journey, if a man of sufficient courage and strength. The letter of Lanfranc, quoted in illustration of the actual condi- tion of society at this time, is No. 32 in Giles's edition, p. 5 r. The appointment of Robert de Limesey, to whom it is addressed, pp. ^g-gg. as Bishop of Chester, is mentioned in the 'Anglo-Saxon SincSngthe Chronicle,' and in 'Florence of Worcester,' anno 1085-1086; ^^*4^bf°- the removal by him of the see from Chester to Coventry, in 2'*°p- 'Florence of Worcester,' anno 1102, and his death at Coventry, also in 'Florence of Worcester,' anno 11 17. The letter in which Gregory VII. mentions the custom Pp. 99-100. ... , A 1 » • ■ Reference to of buying and selhng wives ' m insula Anglorum,' is in the letter of Giles's edition of Lanfranc's Letters, vol. i. p. 59, Letter ontlfe'^seiiini. No. 40. 448 APPENDIX. [cHAt. il. The mutilation of criminals as a perpetual warning to the ill-disposed p.ioo. is recommended in the ' Leges. W. Conq.' iii. 1 7 ; the disappro- cern1n™mu™" bation of the synod held in London will be found in Giles's ^'iconqueror. ' Op. Lanf.' i. '307, as well as in Wilkins' ' Concilia/ i. 363-364. It has been suggested that the trial by combat was recognised in England before the Conquest because it was common to the Northern p ^ nations. Not only, however, is there the negative evidence Note on the of its absence from the laws which constitute our only introduction of . * , . , , ... trial by com- sources of information, but there is the positive evidence of later charters, which clearly show that the native towns- men at least were not f5,miliar with the practice, and considered it a privilege to be excused from the necessity of fighting to prove their innocence. See {passim) the Charters to towns in the ' Rotuli Char- tarum.' This instance shows the extreme danger of inferring the ex- istence of any customs in England solely from their existence among ' Teutonic ' nations elsewhere. The character of Lanfranc given in the text is founded generally upon the acts of his life and his writings. References to particular Pp. 100-102. passages apart from their context would in this, as in many ■ character'of Other cases, be worse than useless. Lanfranc's horror of Lanfranc. clerical marriages, and the story of the married Bishop of Lichfield, are to be found in Giles's edition of' Lanfranc's worts, vol. i. p. 22, Letter No. 4. The alleged introduction of feudal principles into England at the time of the Conquest is very briefly touched in the text, because a long p 102-10 disquisition upon the subject would obviously be out of Note on the harmony with the objects of the present work. Those introduction of -' ■* *■ ^ feudalism into elements in the tenure of land which had a tendency to produce crime have, it may be hoped, been sufiiciently indi- cated in the first chapter ; and the continuance of the same elements is made apparent in those portions of the history for which materials are more abundant, as, fof instance, the portion relating to the reign of Edward III. It should, however, be mentioned that the general spirit of the laws collected in the ' Ancient Laws and Institutes of England ' is to draw a clear distinction between the man who is a Hlaford or lord, and the man who has. a lord over him. Military service was an incident of allodial no less than of feudal tenure ; and the reUefs, aids, &c., which were considered the most oppressive parts of the Norman rale, were excrescences which should not be confounded with the feudal system itself. It is tolerably obvious, therefore, that the dispute concerning the first introduction of feudaUsm into England is a dispute about words rather than facts. CHAP, ii.] REFERENCES AND NOTES. 449 The encroachments of Gregory VII., and the manner in „^E- k>4-ioj- *^ •> ' Kefer,ence con- which they were met by William, appear in Lanfranc's Letters, cerning Greg- •^ . ' X J. f ory s encroach- 10 and II, Giles, vol. 1. p. 31 etseq. ments. The separation of the ecclesiastical from the secular Theiawsepa- . . rating ecclesi- iurisdiction is the subject of one of William's charters, asticaifrom secular juris- ' Ancient Laws, &c., of England,' Leges Will. Con. iv. diction. Domesday Book may now be very conveniently studied in the photozincographs of it published, county by county, under the direc- tion of the Master of the Rolls. They are fac-similes, and pp. 106-109. to consult them is equivalent to consulting the Book itself. Domesday For that reason reference has been made to them in this G°eat Roiisof work, rather than to the old edition. A ' Great Roll,' as 'heExchequer. each of the great Exchequer rolls is usually styled in the document itself, is, perhaps, better known as a Pipe Roll, or Great Roll of the Pipe. The first of these most valuable records was published by the Record Commission, under the editorship of Mr. Joseph Hunter, who suc- ceeded in fixing its date — the 31st year of Henry I. — by a very ex- haustive process of reasoning. The later rolls, beginning with the second year of Henry II., follow in succession year by year with hardly an interruption until the abolition o'f the Pipe Office in the reign of William IV. They are preserved and may be consulted in the Public Record Office. The punishment inflicted on the moneyers for coin- no-m ing false money in the reign of Henry I. is recorded in References o J ^ •/ concerning the Sim. Dunelm. ('Decem Scriptores') Col. 254. punishment of ^ *■ , ' . . comers. There are notices of the punishment to be infficted on the same class in the ' Laws of King ^thelstan,' the ' Laws of King Edgar,' the ' Laws of King Ethelred,' and the ' Laws of King Cnut,' in the 'Ancient Laws and Institutes of England.' The passage relating to the reign of Stephen, for which there are but scanty materials, is founded on that portion of Roger Hoveden which relates to the period ; on the concluding passage in the pp. „i-„5. ' Anglo-Saxon Chronicle,' and;on the ' Gesta Stephani Regis.' f^lH^lSl The terms of the Treaty of Peace are most fully given by |^™£i?3 Matthew Paris, who, though not a contemporary, may, per- "•<='£"■ haps, have had access to a contemporary document. It would be un- safe to- accept his version alone, but thfere is no dispute respecting the general tenour of the agreement made at Wallingford be- pp. „5_„8. , J 1 ■ • 1 References tween Stephen and nis nval. concerning the The somewhat contradictory contemporary versions of SeJklt'and Becket's quarrel with Henry II. have been collected by ^\=i4'p Giles in the first two of his volumes of ' Becket's Life and "ded it. Letters.' The text, it is hoped, will not be found inconsistent with VOL, I. G G 450 APPENDIX. [chap. ii. any of these accounts. The details of the murder are chiefly from the narrative of Edward Grim, an eye-witness, which, however, has been compared with the others. See Giles, vol. i. p. 76. The Assise of Clarendon, a most important document, will be found in Palgrave's ' English Commonwealth,' vol. ii., pp. clxviii.-clxix., printed P 118-1 ^'■^'^ ' ^^' -^^S-' ^4' C- ^- ^ somewhat" different text is PubUcR?" given by Mr. Stubbs, in his ' Select Charters,' &c., pp. 137- cords.Gian- 13Q from Bodl. Rawlinson, C. 641. 'Villata' has been viUe, &c., con- "^ . . cerning legis- translated ' viU ' instead of township m the text, because the lation under ... i ■ 4 • , Henry II. : vagueuess of the ongmal seems to be, m this way, better previous and preserved. ' Villate ' is hardly EngUsh. It should also be iaws!lnd°to mentioned, in addition to the explanation of the words y Jury. , ja,wful mcn ' (legales homines) given in the text, that the ex- pression implied freedom from legal disability of every kind (outlawry, excommunication, minority, infamy incurred by perjury, recreancy, etc.). The functions of the reeve and twelve elder thanes of the wapen- take are briefly described in the ' Laws of King Ethelred,' iii. 3. It is not there stated before whom their accusation is to be laid. The compurgation by twelve in the Hundred, is mentioned in the ' Laws of William the Conqueror,' i. 51, and there only. It is an im- portant connecting link between the reeve and his twelve assessors, the twelve jurors of the Hundred, according to the Assise of Clarendon, and the compurgators according to the wager of law. The oath in every case resolves itself at best into an oath concerning general repute. The later jury system was an adaptation of the old customs to new ideas of evidence. The predominance of the number 12 in the Danish laws rather than in the laws not of Danish origin is further illustrated in ' Alfred's and Guthrum's Peace,' 3. The twelve men in each county sworn, under the Conqueror, to reproduce the Laws of Edward the Confessor are mentioned in the preamble to the Laws so called. The wager of law is recognised by Glanville i. 9, and may be traced through the law-books for many centuries {see Coke upon Littleton, 294- 295). It seems to have been the general legal doctrine that no The Wager of wager of law could be allowed where trespass or injury with force was alleged against the defendant. Blackstone accepts this view, iii. 22. The following -passages, however, may perhaps indi- cate that the wager of law was in some places more generally adopted.- They also show the preference for the number 12 in the North. They are from the Court Roll of Cotam-Mandeville among the Durham Records in the Pubhc Record Office, and are of the early part of the reign of Henry VI. : — Memb. 2 dors. ' Nicolaus Watson queritur versus Johannem Neuton CHAP. II.] REFERENCES AND NOTES. 451 in placito transgressionis de eo quod interfecit unum porcum suum ad valenciam iiJ. j. cum uno baculo ad dampna Nicolai v. s. Et predictus defendit vim et injuriam et dicit quod in nullo est culpabilis et defendit per legem, unde habet diem ad vadiandura legem se septima manu ad proximam curiam cum vicinis vel se duodecima manu cum extraneis.' And, Memb. 3 dors. ' Thomas Webster queritur de Henrico Elwyk et Johanna uxore de eo quod ipsa interfecit unam ovem et agnum et unam aucam matricem ad dampna ipsius Henrici iiij. s. Et predicti Henricus et Johanna defendunt, etcetera j et dicunt quod non sunt inde culpabiles. Et inde profert facere legem, et unde habent diem de lege facienda se duodecima manu ad proximam curiam.' The contemporaneous spelling and manner of extending Note on the It 1 1 • 1 r ■ J spelling, &c., contractions have been reproduced in the foregoing and of Latin docu- other Latin records which have been printed for the first time in these Notes. Glanville describes the Grand Assise (and contrasts it with the duel), in his treatise 'De Legibus Angliae,' lib. ii. cc. 1-17, and the punishment for jurors who committed perjury on the p ^^ .^ Grand Assise, in lib. ii. c. 19. The analogous inquest on TheCrMd persons alleged to have died in the crime of usury is men- tioned by him in lib. vii. c. 16. The scheme for the selection of the jurors of the Hundred who were to make their presentments to the justices, at the beginning of the reign of Richard I., will be found in Rog. Hoveden, Ed. Stubbs, vol. iii. p. 262. The Assise of Northampton (a.d. 1176) will be found in Bened. Abbas, i. 108, and the Inquest of Sheriffs is printed, from a MS. in the Bodleian Library, in Mr. Stubbs' ' Select Charters,' &c., where also the Assise of Northampton is reprinted. It is possible to detect local influence still asserting itself on the Bench of itinerant justices even after the Inquest of Sheriffs. The names (which are given in the Pipe Rolls) show the need of the 21st article of the ' Capitula Placitorum Coronae ' of the reign of Richard I. It is there expressly provided that no sheriff shall be justice during his shrievalty, and that no one shall act as justice in any county of which he has been sheriff since the king's coronation (Rog. Hoved., Ed. Stubbs, vol. iii. p. 264). The remarks concerning the removal of sheriffs in the year 1 1 70, or 16 Henry II., are founded on the list of sheriffs made by the author of the present work, from the Great Rolls of the Pipe, and printed in the 31st Report of the Deputy-Keeper of Public Records, pp. 262-366. The chroniclers, with their usual love of exaggeration, assert that 'nearly all' the sheriffs were displaced. Savigny's ' Geschichte des romischen Rechts im Miltelalter ' contains G G 2 452 APPENDIX. LcHAP. ii. documents affording ample proof that the Roman Law was not forgotten on the Continent during the Middle Ages. The introduction of the p ^ subject among the studies at Oxford in the year 1138 is Note on the mentioned in Gervase ('Decem Scriptotcs ') Col. 1665. Its study of the . „ ^ ,- , • ^ tt tt Roman Law mfluence upon the lawyers of the time of Henry 11. may ng and. ^^ inferred from the Prologue to Glanville's treatise, which is imitated, or rather copied, with very little variation, from the 'Procemium ' to Justinian's Institutes. The actual operation of the legal system sketched .out in the Assises of Clarendon aad Northampton becomes apparent in the series of Pp. i3s-i3r- Pipe Rolls in the Public Record Office. Thus in the roll referents to of the year 22 Henry II., the ' Justicie errantes ' are men- ofthe^Exche-^ tioned, and the pecuniary proceeds of their visits begin to ?he "^friy '?p°e" appear in the accounts ; but the eyre was not completed till s^stem°of''° the 23rd year, in which appear the amercements of counties eyes. which had escaped the visit of the justices in the 22nd year. Some care is reqijired to separate the accounts of one eyre from those of another, as the sums due were not paid at once, but in instalments, year after year, and the accounts of a new and an old eyre may appear on the same roll, or the accounts of a previous eyre on the roll of a year during which there was no e5T:e at all. The new accounts are distinguished from the old by the heading ' Nova Placita, Nove Con- ventiones.' But here again there is a possible source of error, as the same heading is applied to the new pleas, &c., belonging to jurisdictions other than those of the justices of the criminal eyre ; and the justices in eyre are not usually designated by that name after 22 Henry II. But here also it is only necessary to bear in mind the subject-matter of which the justices in eyre had cognisance according to the Assise of Northampton, and the intervals of the criminal eyres at once become apparent. The result may be verified by an inspection of the names of the justices, which always show that the Bench of the true criminal e3Te was composed in part, though not in every case wholly, of judges who were not merely local magnates, and who were, no doubt, con- nected with the central King's Court. With these precautions a little industry will suffice to detect that the eyre which followed that of 22 and 23 Henry II. was carried out in 24 and 25 Henry II., or, in other words, that from the commencement of one to the commencement of the other there was an interval of two years. A comparison of the Pipe Rolls of the end of the reign of Henry II. seems to show that the interval between eyre and eyre had become already somewhat greater. The length of time occupied by an eyre, and, perhaps, the dilatoriness of some Exchequer clerks, which have rendered it necessary to describe a single eyre as belonging to two CHAP. II.] REFERENCES AND NOTES. 453 years, are throughout a source of confusion. There was, however, an eyre of which nearly all the accounts appear in the thirty-first, and another of which nearly all the accounts appear in the thirty-fourth year of the reign of Henry II., and if the interval between the two was not quite three years it must certainly have been more than two years. Though there were to be four judicial visitations, in the year for holding assises of Novel Disseisin, according to John's Magna Carta, the eyre proper seems to have languished after the death of Henry II. The periods of the criminal eyres, however, could be ascertained only by a very careful inspection of the whole of the Pipe Rolls, and the result would hardly be worth the labour. The extension of the interval between the eyres in the reign of Henry III. to seven years seems to be established by a passage in the ' Monachi Wigorniensis Annales,' 'Angha Sacra,' i. 425. It there appears that a resolve was taken to resist the entry of the justices in eyre into Worcestershire, because seven years had not elapsed since their last visitation. The division of criminal jurisdiction in Glanville's time (reign of Henry II.) into that of the justices in eyre, for greater offences, such as homicide, and that of the sheriff for minor offences, such as larceny, will be found in the last sentence of Glanville's work. The ' gemot ' of the shire under the presidency of the sheriff was probably held at the same times every year as before the Conquest. See ante, pp. 443-444. The defects — and, indeed, the worthlessness — of these county courts, easily to be conjectured from the general state of society, are brought promi- nently forward in the statutes relating to criminal matters passed in the reign of Edward I. It has been supposed that the distinction between Norman, or Frenchman, and Englishman was at an end in the reign of Henry II., and that all marks of inferiority had then been removed p jj^.,,. from the English people. The authority of the ' Dialogus J^ferel™s^o de Scaccario' does undoubtedly seem at first sight amply ''j';^'^^!''^""' sufficient to establish this belief The treatise is in manu- quer, the • Dia- logus de script both in the Red Book and in the Black Book of the Scaccario/ *■ , , GlanviUe, Exchequer, and is printed at the end of the ' History of the Bracton, the , , ., . , Statutes, &c. Exchequer by Madox, who attributes it, apparently on concerning the good grounds, to 'Ricardus Filius Nigelli.' The supposed tinctionbe- writer was Bishop of London in the reign of Richard I., and Engiuh?" and had previously been -'Treasurer at the Exchequer. """"■ There is no necessity to controvert the received opinion with respect to the authorship of the: '-Dialogus ' or the period at which it was com- piled. But there is no: doubt that, whatever its authorship, it is in- correct in this well-known passage : — '. . . ut centuriata . . . fisco con- demnaretur, quaedam scilicet in xxxvi, qusedam in xliiii 1. . . . 4S4 APPENDIX. [chap. ii. 'Sed jam cohabitantibus Anglicis et Normannis et alterutrum uxores ducentibus vel nubentibus, sic permixtse sunt nationes ut vix discerni possit hodie, de liberis loquor, quis Anglicus quis Normannus sit genere ; exceptis duntaxat adscriptitiis qui villani dicuntur quibus hon est liberum, obstantibus dominis suis, a sui status conditione dis- cedere. Ea propter pene quicunque sic hodie occisus reperitur, ut mur- drum punitur, exceptis his quibus certa sunt, ut diximus, servilis con- ditionis indicia.' In the first place the sum here alleged to have been paid by the Hundreds when a Frenchman had been slain is inconsistent with the passages relating to this subject in the Laws of the Conqueror and in the Laws attributed to Henry I. In the ' Dialogus ' it is stated that the sum of forty -four pounds was in some cases paid for a single murder, whereas forty-seven or_ forty-six marks is the maximum according to the laws. The mark was two-thirds of the pound, and forty-four pounds would therefore be sixty-six marks. The Laws attributed to Henry I. are at any rate not of earlier date than his reign, and the fact that they agree so closely as they do with those of the Conqueror in the sum for which the Hundred was made liable renders it extremely improbable that there was any change in the interval between the compilation of the two sets of laws. It is also perfectly clear from the Pipe Roll of 31 Henry I. that the maximum did not exceed the sum mentioned in the Laws, and that, at this period at any rate, the maximum was rarely or never exacted. The Roll of Henry I. affords a most certain conclusion on this point, because, unUke Some of later date, it contains the statement that each payment is for one murder, not as elsewhere ' pro murdr,' which might be one or many. The sums vary from a hundred shillings to fifteen marks ; in later Rolls the payments are not so large ; and there seems no alternative but to pronounce that the author of the ' Dialogus ' was completely misinformed. The Red Book has xxiiij. 1. where the Black Book and Madox's text have xliiii. 1. ; but though the maximum is thus brought lower, it cannot be made to agree with the Laws or with the Rolls. The reading xxxvi. is common to both MSS. ; 36 1. would be 54 marks ; 24 1, would be 36 marks — the one sum too high, the other too low for the legal maximum, and both too high for the sum commonly exacted. The statement that the distinction between Englishman and French- man had practically come to an end in these criminal matters is ob- viously of diminished authority when an important error has been detected in the context. It seems also to be sufficiently refuted by the considerations put forward in the text of the present work, which ought, however, perhaps to be confirmed by more specific references. In the Pipe Rolls of the latter part of the reign of Henry II., the ' false present- CHAP, ir.] REFERENCES AND NOTES. 455 ments,' which must, no doubt, be interpreted as false presentments of Englishry, are very frequent, as are ' concealments ; ' and ' false present- ments of Englishry ' by name are to be found on the Pipe Roll 34 Henry II., under Berkshire, Somersetshire, &c. The presentment of Englishry is an essential feature in the ' Rotuli Curiae Regis,' of which the earliest were published by the Record Commission, and edited by Sir Francis Palgrave. The entries are very short, but sufiSce to show the presentment in actual operation. One of the chief functions of the justices at this time (temp. Ric. I.) seems to have been to decide whether the presentment was duly made by the Hundred, and whether a death came under the technical definition of murder or not. Death by misadventure or starvation might be a ' murdrum ' if there was no presentment of Englishry. Perhaps, however, the most convincing proof that the distinction bet^veen victors and vanquished was continued beyond this time is to be found in Bracton. He gives a definition of murder, which agrees in the main with that of Glanville. Glanville says (lib. xiv. c. 3)/. 'Dicitur murdrum quod nuUo vidente, nuUo sciente clam perpetratur, prseter solum interfectorem et ejus complices, ita quod mox non assequatur clamor popularis.' According to Bracton: ' Murdrum est occulta extraneorum et notorum hominum occisio, a manu hominis nequiter perpetrata, et quse, nullo sciente vel vidente, facta est, prseter solum interfectorem et suos coadjutores et fautores, et ita quod non statim assequatur clamor popularis.' Bracton, who lived in the reign of Henry III., is by no means a servile copier of Glanville, who lived in the reign of Henry II., and the account which ■he gives of the Hundred and of its murders is much fuller than that of his predecessor. But what is most remarkable is that the form of the ' presentment of Englishry,' which is wanting in -Glanville, is given at length in Bracton. It might almost be inferred that this form had been finally matured in the period between the compilation of the two treatises — especially as French and English are carefully distinguished in charters of John's reign. Whether that is so or not, however, there is at least no doubt that the custom of proving a murdered person to be English, if possible, was in complete vitality in the time of Bracton, who states that the fact had to be proved by the nearest relatives (Bracton, pp. 134-135). This and the fact that the presentment of Englishry was not formally abolished before the Stat. 14 Ed. III., St. i. c. 4, seem to establish beyond all reasonable doubt that English- men were not equal with their conquerors in the eye of the law for some generations after the time at which it is commonly supposed that the nation ceased to wear any badge of subjection. The testimony of the next of kin concerning the parentage of the dead deserves perhaps to be regarded as one of the links connecting 4S6 APPENDIX. [chap, ii, the old system of procedure with our modern custom of deciding matters upon evidence. The references concerning the progress of the towns are given in the notes to the next chapter. The story of Bucquinte and the other housebreakers who were merchants in London is from Benedict Abbas, Ed. Stubbs, i. 155. The p j.,_j .2 persistence of the old regulation which made innkeepers crimri" Lon- lesponsiblc for their guests, from the period before the Con- don and other quest to the perfod under consideration and afterwards, and towns in the J. jr ^ ? i2th century, the Stringent rules against night-walking, show clearly enough the lawlessness of the towns— the least lawless parts of the kingdom. The assertions concerning false weights and measures, and other de- vices for cheating, are founded on the Great Rolls of the period, /(Wj-m, and on Neckam, ' De Naturis Rerum,' c. clxxix. M.R. Series, p. 315. The general description of the Court is from Mapes, ' De Nugis Curialium,' and in particular from Dist. i. 1-5, and 10, from Peter of Blois, especially Ep. xcv. (Editions of Migne or of Giles), References from Neckam, ' De Nat. Rer.' cc. 40, 129, 158, etc., and concerning the ' ~t i yi J t ■> Court of from the tone of all the chroniclers and letter-writers. The details of the treatment of women and the views enter- tained concerning matrimony are from Neckam, 'De N. R.' c. 155, from Peter of Blois, Ep. Ixxix., and from John of Salisbury, 'Polycrat.'Ub. iii. cc. 4 and 14, and lib. viii. c. 11. An account of the love of gaming and the loaded dice will be found in Neckam, ' De N. R.' c. 183. The appointment of the three Bishops as Chief Justices References (' Archijusticiarios ')) to check the iniquities of tlieir sub- concerning the ^ . . . ' . . character of ordmates, IS mentioned m Rad. de Die. (' Decern Scnptores ), the clergy. r^ i r r An. 1 1 79. Col. 605-6. Richard I.'s lament over the depravity of his clergy is in Gervas. Chron. 1595. Peter of Blois' description of a bishop of his time is among his Letters. Ep. xviii. (The numbering is the same in the editions both of Migne and of Giles.) The account of the dispute between the Archbishops Pp. 148-149. *- ^ References of Canterbury and York, and of the riot in the Council- clerical brawl chamber, is from Will. Newb. lib. iii. c. i, from Rad. de malywasi/ Dic. (' Dccem Scriptores ') 588-589, and from Benedict dispute. ^^^^^ g^_ gj^^^g ^j^^ ^Qxiz^), vol. i. II 2-1 13. Pp. 149-1S1. The early pilgrimages to the shrine of Becket are Sncemkigthe Tccorded in Benedict Abbas, vol. i. pp. 72 and 91. s^ai!ng"of The steaUng of St. Petroc's body from one religious house relics. ^t the instigation of another is narrated in Benedict Abbas, vol. i. pp. 178-180, and in Rog. Hoved., Ed. Stubbs, vol. ii. p. 136. CHAP. ii.j REFERENCES AND NOTES. 457 The statements concerning the distribution of charities and the real fountain-head of mediaeval alms are founded on a careful inspection of the original Great Rolls of. the Exchequer (Pipe) ftom year to year. These most valuable documents may be Note and . references to easily consulted in the Public Record Office, and the infor- Records, &c., rn'T 11 1 • 1 -iiif concerning the mation of which use has been made m the text will be found support of the 1 1i'*ri ' r 1 f-i ^^^^ ^^^ poor in them at the beginning of the entries for each county. See in the 12th especially the Rolls from 2 Henry II. to 10 Richard I. The '^^" "^' fact that the religious houses did receive and lodge poor travellers is not disputed, and might be easily established by one of the articles in the Assise of Clarendon. In that most important document, sees. 15 and 18, will also be found the regulations respecting wayfarers arriving at a town, and the registration of those who fled [from their lords] out of one county into another. The rise, or reappearance, of various heresies in the South of France in the twelfth century is mentioned in Will. Newb. lib. i. c. 19, and in Chron. Gervas. ('Decern Scriptores') 145 1. The appearance of the Paterlnes in England and their doctrines are described Note and references con- in Will. Newb. u. 13, and in Mapes, 'De Nug. Cur.' Dist. i. cemingthe c. 30 ; their sentence in Will. Newb. lib. ii. c. 13, confirmed treatment of by the Assise of Clarendon, sec. 2 1 . The absence of all tics in Eng-"^' compassion for the condemned and starving heretics is most remarkable both in the account of William of Newburgh and in a letter of Peter of Blois, No. cxiii. Accounts of the Brabazons or heretical brigands will be found in the Chronicles already mentioned, and an indication of the manner in which their numbers were recruited, in Mapes, 'De Nug. Cur.' Distinct, i. c. 29. The paragraph in which is sketched the history of the Jews in England immediately after the Conquest is founded on the ' Carta JudEeorum AngHae,' printed in the ' Rotuli Chartarum,' p. 93, Pp. i^-j-^^g. on the notices of the Jews on the Great Roll of the Pipe 3 1 ro/"rnii2 the Hen. I., on Benedict Abbas, Ed. Stubbs, i. 182, and on /anTintte^" various entries on the Great or Pipe Rolls of the reign of "'** "^^n'^y. Henry II. (in the Public Record Office). The coronation of Richard I., and the attack on the Jews by which it was followed, are described in Benedict Abbas, vol. ii. pp. 79-84, and the riot in Will. Newb. lib. iv. c. i. There are accounts of the pp ijg-jg,. massacre of Jews at York in Will. Newb. lib. iv. cc. 9-10, ^^cemmgthe andBened. Ab. vol. ii. .p. 107. The riots at Lynn, Stam- iSXrdi"Md ford, and Lincoln, are mentioned in Will. Newb. iv. 7, 8, 9. *e subsequent ' ' > ' ' ■> massacres It appears from Bened. Ab. vol. ii. p. 84, and from Will, of the jews. Newb. lib. iv. c. 11, that a few of the culprits were hanged. The names of others and the amercements inflicted on them may be found on the 458 APPENDIX. [chap. ii. Pipe Roll 3 Ric. I. Ro. i dors., and Ro. 6, and repeated on the Pipe Roll 4 Ric. I. (in the Public Record Office). The rapi d sketch of the first two Crusades is from the ' Gesta Dei p i6 -i66 P^"^ Francos.' For the Firs't Crusade see especially Willermus References Tvriensis, lib. i. cc. 27-20, and Albertus Aquensis, lib. i. conceramgthe -' i-" ^,^ \._,.^. first two Cm- cc. 25-28. For the conduct of the Count of Tnpoh see sades, and t-he . . , i 1 r 1 ^-^ morals of the Will. Tvr. lib. 21. But the whole of the 'Gesta' illustrate Crusaders. , i i- i . i the morals of the period. Richard's character is apparent enough in the contemporary p 166-16 Chronicles. For his various revolts against his father it may References in this place Suffice to refer to Bened. Abbas, Ed. Stubbs, i. concerning the . . ' ch^actcrof 42, ii. 7, 9, 6 1, etc, and to Rog. Hoveden (Ed. Stubbs), and the Or'di- vol. ii. pp. 47, 363, etc. The Ordinances for the voyage nances for the - ^ ^ • ^ . _^ —— ^ 1 ■■■ r fr\ punishment of to the Holy Land appear m Rog. Moved, vol. in. p. 36 (Ed. the third Stubbs). They have been printed from Hoveden in Rymer's Foedera (Record Commission Edition), vol. i. part i. p. 52. CHAP. III.] REFERENCES AND NOTES. 4S9 CHAPTER III. The charter of William I. to London is printed (from the alleged original) in the ' Munimenta Gildhallse Londoniensis ' — ' Liber Custu- manim,' vol. ii. part ii. p. 504, edited by Mr. Riley for the M.R. Series, and the charter of Henry I., from an ' Inspexi- Cha'rtersshow- mus ' on the Patent Roll, 2 Edward IV. part v., in R)TTier's kges acquired ' Foedera,' vol. i. p. 1 1, Rec. Com. Edn. In the latter during \h™ffrst charter appear the exemption of the City from the 'mur- after"he"con- drum,' the privilege of trial by compurgation, and the right from'lh^l^ur^ of hunting. A charter of the reign of Henry II. to '*"-'^"=' ^'=- Lincoln (' Foedera,' i. 40, Rec. Com. Edn., from the ' Cartas Antiquse,' formerly in the Tower) contains a general confirmation of ancient liberties and laws extending back to the time of Edward the Confessor ; _but somedoubt seems to have arisen in the interpretation of the passage, for by a later charter of the reign of Richard I. ('Foedera,' i. 52, Rec. Com. Edn., from the same source) the ' quietantia murdri ' is granted in ex- press terms. Winchester receives, in the first year of Richard's reign, a charter (' Foedera ,' i. 50, Rec. Com. Edn., from the ' CartK Antiquae '), in which the citizens have the privilege of clearing themselves in Pleas of the Crown ' secundum antiquam consuetudinem civitatis.' Gloucester acquires the same privilege by John's charter (' Rot. Chart.' p. 56). Among the towns which had, in the reign of John, acquired for their inhabitants the privilege of clearing themselves in Pleas of the Crown, in the same manner as the citizens of London, were Lincoln, Norwich, and Northampton. See the 'Rotuli Chartarum,' published by the Record Commission, pp. 5, 20, 45, 56 ; and for Lincoln see also the charter of Richard, to which reference has already been made. Richard's charter to Colchester, with privilege of hunting, is printed in the form of an ' Inspeximus ' of the reign of Edward IV. in Madox's 'Firma Burgi,' p. 28. An instance, by no means singular, of the grant of a borough to its inhabitants honorifice, in the terms in which land is commonly granted, occurs in the charter to Huntingdon (' Rotuli Char- tarum,' p. 157). The existence of a Guild Merchant at Lincoln, from the time of Edward the Confessor downwards, is asserted in the charter, already 46o APPENDIX. [chap. hi. mentioned, of the reign of Henry II. References have been given (at p. 440) to Domesday concerning the pre-Norman guilds at Dover p J _j and Canterbury ; and, from the manner in which the ' Bur- Note and re- genses' of various other towns are mentioned collectively terences to ^ ^ Charters, in the book, there is good 'reason to suspect that guilds Glanville, &c., o . .^ concerning the existcd whcre they have not been descnbed under that munesof name. See especially Norfolk, p. 16, where twelve bur- end of the i2th gesses are said to have held a church. The ' xii. lagemanni ' beginnmg'of of Liucoln itsclf may indeed have been a hereditary town- ' '"^' ■ corporation. The charter of John, in which the guild mer- chant is described as already existing at Gloucester, will be found in the ' Rot. Chart.' pp. 56-57. Of the previous charters to Gloucester one is^f the reign of Henry II. (' Cartse Antiquse,' DD. 3), and one of the reign of Richard I. (' Cartse Antiquas,' DD. 4). In both the ' Burgenses ' are mentioned, in neither the guild ; and it is by no means improbable that wherever ' Burgenses ' are mentioned as a body, a guild of burgesses or a guild merchant is meant. The statement that the. numerous charters of John's reign in which towns are permitted to have their guild mer- chant and hanse or hanse-house, do not necessarily imply the creation of a new institution, but may be simply intended to confirm an ancient custom, is further justified by such passages as the following. In the charter to Ipswich (' Rot. Chart.' p. 65) the words are ' Concessimus . . . quod habeant gildam mercatoriam et hansam suam' — that they may have their guild merchant and hanse. The words ' suam hanshus ' are used in Archbishop Thurstan's charter to the men of Beverley in the reign of Henry I. ; and ' sua hanshus ' is there mentioned as belonging to the citizens of York (' Foedera,' Rec. Com. Edn., i. 10, from the ' Cartae Antiquse'). Henry II. confirms to the men of Southampton their guild as they had it in the time of Henry I. (' Inspeximus' of tlie reign of Edward III., printed in Madox's ' Firma Burgi,' p. 27). In many other cases the words are simply ' concessimus eis gildam mercatoriam,' as in the charters to Lynn and Yarmouth(' Rot. Chart.' pp. 138 and 175) ; but even this form is quite consistent with the previous existence of a guild merchant, which was now to be placed on a legal footing. Instances, too, of various guilds or communes existing without warrant have been collected from the Pipe Rolls of the reign of Henry II., by Madox (' Firma Burgi,' pp. 26, 27). The establishment of a new guild in a town which previously had no corporation of any kind seems to be indicated by the form of the grant to Niort (' Rotuli Chartarum,' p. 59): — ' concessimus quod burgenses de Niorto faciant et habeant com- munam in villa sua de Niorto.' A question might, of course, be raised whether a ' communa ' is precisely the same thing as a guild merchant or town guild such as existed in England ; it seems to be sufficiently CtlAP. iii.J kEPEREJ^CR^ AND NOTES. 461 answered by the words of Glanville : ' Item si quis nativus quiete per unum annum et vmum diem in aliqua villa privilegiata manserit, ita quod in eomm communam, sicut gildam, tanquam civis receptus fuerit, eo ipso a villenagio liberabitur.' Lib. v. c. 5. One edition, has, instead of ' communam, sicut gildam,' the reading ' communem gildam ' (for which there. appears to be no good MS. authority) ; another has ' communiam, scilicet gildam.' Mr. Stubbs, the Regius Professor of Modern History at Oxford, informs me that of the two Bodleian MSS. of Glanville, one reads ' communiam s. gildam,' the other ' communam s. gildam.' The MS. in the British Museum, Reg. 14. C. 2, to which I referred upon his recommendation, and which appears to be the best, reads ' communam sicut gildam.' The Cottonian MS., Claud. D. 2, reads, ' communam scilicet gildam.' All the MSS. seem, therefore, practically to imply that a guild is a kind of ' communa.' Further confirmation is to be found in the fact that ' communa ' is often used as an equivalent for a guild of any kind in those ordinances of guilds which are written in Latin. See Toulmin Smith's ' English Gilds,' p. 201, and the text of the ordinances printed in that book. The whole Jewry collectively is sometimes de- scribed as the ' communa ' of the Jews of England. The Jews had, too, a communa in each of the towns in which they were permitted to reside, and their communa paid the tallage very much as the ' commune concilium ' of a town, or its representatives paid dues claimed from the town as a whole. It seems to follow that where there was no ' com- muna ' there was no .guild, and that wherever there was a guild there was ipso facto a communa, though there might have been a communa where, perhaps, there was not, according to technical language, a guild. See the Jews' Rolls, Pells (Exchequer of Receipt), /awm. The acquisition of freedom by a villein, through residence for a year and a day in a chartered town, is mentioned in the passage just quoted from Glanville : it is also expressly confirmed in the char- „ . Pp. I74~i75- ters to some of the towns, as for instance, in the charters of References to 1 TT • 1 IT-, ■ Charters, &c., Henry 11. to Lmcom and Nottmgham (Rymer, ' Foedera, 1. concerning p. 41, Rec. Cora. Edition, from the ' Cartae Antique'), and acquired bj;fu- in the charter of John to Hereford ('Rot. Chart.' p. 22). after a year's The privilege was, no doubt, claimed, if not allowed, at a charteredto™ much earlier date. It appears among the Customs of New- burgage^""'"^ castle-on-Tyne, said to have existed in the time of Henry I., '='""^^- drawn up in the reign of Henry II., and preserved in the Tower. See the 'Acts of Parliament of Scotland,' vol. i.. Preface, pp. 33-34. Note. (There is a short confirmation printed in Rymer.) 'Burgagium' is there mentioned as the condition of a free-townsman in opposition to that of a villein. A free tenure existed before the Conquest in favour, if not of individual burgesses, at least of the burgesses of a city collectively. 462 APPENDIX. [chap. hi. Thus according to Domesday, Kent, p. 3, there were lands which the burgesses of Canterbury ' tenebant, in alodia, de Rege.' It may be possible to trace the principle of representation in the jury of the Hundred and other judicial contrivances, but the towns Pp 176-178 ^^^"^ t° afford the first example of representation combined Charters ^yjth a true clection as distinguished from a mere nomina- showing the ° . - . . growth of the tion made directly or indirectly by the Sheriff. This is only representative •' \ ri-'i_-i_ principle in the natural consequence of the charters, 01 which the most important rendered the towns independent of the Sheriffs. Instances in which the ' commune concilium ' was to elect its represen- tatives and send them to Westminster to treat with the Chief Justice, and render an account, will be found in the charters to Gloucester and Ipswich, in the reign of John (' Rotuli Chartarum,' pp. 57 and 65). Charters to other towns at the same period show that the same principle was coming into operation elsewhere, though not yet carried out in its integrity. ^i?^the charters to Shrewsbury and Derby (' Rotuli Chartarum,' pp. 142 and 138). The statement that the chief commerce of England was the export of wool to Flanders, and the inference that the greater part of the land i&'ords &"' ^^^ grass-land, are founded upon a careful inspection of the concerning Original Pipe Rolls for a long series of years, extending as far commerce as the beginning of the reign of Edward III. The notices Conquest. of guilds of weavers in various towns in the twelfth century have been collected from the earliest of these Rolls by Madox ra his 'History of the Exchequer,' c. 10, § 5.. For the other illustrations of English trade at this period, see Hemingford alias Hemingburgh, iii. 27, the Patent Rolls 55 Henry III., mm. 6, 10, 15 ; 5 Edward II., part 2, m. 5 ; and 2 Edward III. m., 14. It was by the Statute of Merchants 13 Edward I. and by the Statute of Westminster the Second (c. 18), of the same year, that land became a security for debt. By the one was created that species of estate upon condition which was known as an estate held by Statute Merchant, by the other that which was known as an estate by elegit. In each case the land was held in pledge by the creditor until the debt was paid. The roll upon the authority of which the proportion of town population to country population has been estimated in the text is the Vascon Roll, RoUsffin^" ^^ Edward II., part i., written in the French of the period. thedistribu- It would be difficult to overrate the importance of the tion of popula- ,..._., ^ tion in England evideuce which it lumishes when regarded as a whole Its under Edward ^ r.- ■»«- n %^» , II. value was known to Sir Matthew Hale. In his MSS. in Lincoln's Inn Library, vol. Ixxxvi. under the heading 'Musters and Souldiers ' appears this note : — ' De numero hominum ad militiam electorum separatim singulis locis et comitatibus Anglise, quibus in- structi armis, &c. (Vascon. Rot. 18 Ed. II.).' It is possible, indeed, that CHAP. III.] REFERENCES AND NOTES. 463 the scribe may have carelessly omitted one or two names (as, for instance, those of Colchester and Cambridge), or may have intended to insert them at another time, but there is no reason to doubt that the record gives a faithful account of England in the main, and may be fully trusted. It is strange that a document so rich in information should not have been printed in any of the editions of Rymer's ' Foedera,' and still more strange that extracts should have been made from the second part of the Roll, which is not in any way of so remarkable a character. Such an extraordi- nary omission well justifies the remark thrown out by Sir T. D. Hardy in his Syllabus of the ' Fcedera,' that a ' Supplement ' is urgently required. The statement that Jews inhabiting their quarter of each large town were, like certain Christian inhabitants, styled a ' communa,' is founded on a Roll headed '4, incip. 5, Edward I.,' among the j^P^rdslic' Tews' Rolls (Pells) in the Public Record Office. , Elsewhere conpeming the ■" ^ ^ ^ position of the (Bundle 556, No. 8) it appears that there was a ' communa' Jews before \. , , 1 r 1 -r • T, , , Pandulfbe- of the whole of the J ews m England. came Legate. The regulations for the Jewry under Richard I. will be found in Rog. Hoved., vol', iii. pp. 266-67, Ed. Stubbs, and the substance of them in the 'Memorials of Richard I.,' vol. i. (Itin. Reg. Ric), Ed. Stubbs, p. 449. The story of the Jew of Bristol is from Matthew Paris, ' Historia Major,' anno 12 10. Tove/s ' Anglia Judaica' contains at p. 79 the order (printed from the Close Roll 2 Hen. Ill,, Part 2, m. 10) for all Jews to wear a badge, and at p. 77 a document (from the same roll and membrane) which shows that the Jews were a common object of attack to the Crusaders in England. The attempt of Stephen Langton to apply the badge to Jewesses as well as Jews will be found in the ' Concil. Oxon.,' a.d. 1222, Wilkins, i. 591. Pandulf s policy of expulsion and his complaint that the clergy, and especially the Abbot of Westminster, were oppressed by their Pp. 188-190. Jewish creditors may be seen in the ' Royal Letters,' Henry ing that the III., No. 369, Public Record Office. (Printed M.R. Series, SbtYoX'"" 1 . ^ r \ Jews, and de- VOl. 1., pp. 35-36.) sired their The pledging of tithes by the parson of Morcott is men- '"P"'^'""- tioned in the ' Ancient Miscellanea, Exchequer, Queen's Remem- brancer, Jews,' Bundle 556, No. i, in the Public Record Office. It appears by the same Roll that the parsons of Luffisnham and Whissen- dine, and the Prior and Canons of Brock were also in debt to the Jews — and this as early as the reign of Richard I. The interest charged varies from a penny to threepence per week per pound lent. The cartoon, in which Isaac the Jew, of Nor\vich, is the principal figure, is drawn on the Jews' Roll (Pells), 17 Henry HI., in the'PubHc Record Office. His wealth and position, as one of the chief Jews, are 464 APPENDIX. [chap. iit. made apparent by the Close Roll 9 Henry III., m. i (vol. ii. page 67 b. of the edition printed by Sir Thomas Hardy), and by the ' Royal Letters,' Pp. 190-191. Henry III., No. 736 (page 18 of vol. i. in the ' Royal Letters ' S^Son'of printed in the M.R. series). Mosse Mokke is mentioned je-^Ta"^ as a Norwich Jew in the Fine Rolls (printed by the "^^33- Record Commission), vol. i. p. 285, and as having been hanged — ^no doubt for some alleged offence against the coin — at p. 408. Particulars concerning the appearance of the ' Caursini ' ' Caturcenses,' or Pope's money-changers (' scambiatores ' or ' mercatores ') in England p. 1,2. will be found in Matthew Paris, ' Historia Major,' annis foncemTngthe i23S> i^SSj &c-> and in the 'Historia Minor,' M.R. series, mraey- '^°1- "•» PP" 382-384. The attempt of the clergy to deprive changers.' tjjg jg^g of food appears on the Close Roll of 7 Henry III., part 2, m. 29, d., printed in 'Anglia Judaica,' p. 83. That the offences of concealing property and bribing the justices Re?erenres'^' ^^^^ commonly practised by the Jews is established by the bribe™ofjus- Cl°^^ '^oYi., 36 Henry III., m. 14, dors, (printed in ' An- ticesbyjews. gha Judaica,' p. 131), taken in connection with Matthew Paris, annis 1251 and 1252. For particulars of a riot in which the Jewish quarter was the object of attack, see Patent Roll, 48 Henry III., m. 11 (' Anglia Judaica,' i&'oSnhow PP' iS^"''^^). For losses sustained by the Jews through ing a change protections given against them in favour of the Crusaders, in the position ^ ' of the Jews. see ' Royal Letters, Henry III., No. 601 (vol. ii. p. 98). The pledging of the Jewry to the king's brother, the Earl of Cornwall, is mentioned in the Patent Roll, 39 Henry III., m. 13 (Rymer's 'Fcedera,' i. 315) ; its transfer to Edward, the king's son, in the Close Roll, 46 Henry III., m. 19 ('Anglia Judaica,' p. 157); and to the Caursines,' in the Patent Roll, 47 Henry III., m. 9 (' Ang. Jud.,' pp. 158-159). The regulations by which it was rendered illegal for Jews to possess a freehold are given in 'Anglia Judaica,' pp. 188-191, from a MS. in the Bodleian (N. E. A. 19). The Statute of the Jewry (temp. Ed. I.) is printed in the Statutes of the Realm, i. 221. A document which recites crimes committed statSe of*ihe ^^ ^^ ^^^^ against the Catholic faith, and ends with a com- jewry, &c. mand that Jewesses should wear badges, is on the Close Roll, 7 Edward I., m. 6. d. ('Anglia Jud.,' p. 208). Particulars of the alleged cmcifixion of a child by Jews at Lincoln and of the subsequent trial, are given in Matthew Paris, ' Historia Major,' Referen'Tes'^' ^™° 1255 (Wats. P- T^s) J in the ' Royal Letters,' Henry concerning III., No. 193, printed M.R. series, vol. ii. p. no; and in agamstthe the Patent Roll, 40 Henry III. m. 17, d. (' Angl. Jud.,' pp. tS.&T"' 137-138)- The insult to the Cross at Oxford, and punish- CHAP. III.] REFERENCES AND NOTES. 465 m ment of Jews for the offence are detailed in the Close Roll, 53 Henry III. m. 12 ('Angl. Jud.' pp. 170-173). The hanging of 218 Jews in London alone, besides a great number in other cities, for offences against the coinage, is mentioned in the ' Chron. Dunst.' (Ed. Luard, M.R. series), p. 279, and in the ' Flor. Hist' attributed to Matt. Westm., p. 409, etc. The practice of laying false informations against Jews after these executions is the subject of an instrument on the Close Roll, 7 Ed. I. m. 7 ('Angl. Jud.' pp. 21 1-2 13). In London a Jews' synagogue had been given to the Friars Penitent according to Close Roll, 56 Henry III. m. 3 ('Ang. Jud.' pp. i92-i93)> It appears in a letter from Peckham, Archbishop of Canterbury, to the Bishop of London that Jews were afterwards forbidden to hold religious services in their own houses, on the ground that, according to law, no more than one synagogue in any town was permissible. See WilkinSj ' Concilia,' vol. ii. p. 88 (from Reg. Peckh. f 16, a). At p. 1 80 of the same volume appears sentence of exile passed on the Jews at a synod held in London. This document, however, is not well authenticated, and, much as the clergy might desire pp. 156-197. such a decree, they had not the power to enforce it. But feencM'con- the fact that the Jews were expelled by the secular power is ej™i"fo'„''of proved by writs relating to the matter directed to the sheriffs *' -I'*^- of various counties in the i8th year of the reign of Edward I. See Close Roll, 18 Ed. I. m. 6 (' Anglia Jud.' p. 240), and Patent Roll, )8 Ed. I. m. 14 (' Anglia Judaica, p. 241). The number of Jewish exiles is stated to have been 16,511 in the ' Flores Hist.' attributed to Matthew of Westminster, anno 1290 (P- 414)- Edward's promise to devote the proceeds of the Jews' houses to pious uses appears on the Patent Roll, 19 Ed. I., m. 20. His actual grant of synagogues and burial-grounds to the clergy is established pp ig^-igg. by a document preserved in the Tower of London and now ^neemmg the in the Public Record Office. Its description is 'Tower ^ffhe^/i^'i-" Records Miscell.' No. 74. It is headed ' Littere Patentes de %°°^^< &<=■ concessionibus factis de domibus que fuerunt Judeorum in Anglia.' These Letters Patent, bearing date 19 and 20 Edward I., were also en- rolled on the Originalia Roll, 20 Ed. I., from which they have been printed, not quite accurately, in the ' Rotulorum Originalium Abbrevi- atio,' vol. i. p. 73. The debts of the clergy to the Caursins, and the bitter complaints excited, are mentioned at length in Matth. Paris (Ed. Wats.), pp. 417-419, anno 1235. Some data for estimating the value of^^^ioojooo-^the loss sustained through the robbery of the Treasury in the reign of Edward I. — are to be found in Matthew Paris, anno 1245, where the amount of the national VOL. I, H H ^^'^ APPENDIX. [chap. III. revenue IS stated to have been less than 60,000 marks or ;^ 40, 000, and m the Patent Roll 5 Edward III., part 3, m. 4, according to which the p. 199. Merchants' company of the ' Bardi ' are to have (with cer- references tain limitations) the customs of London, Boston, Hull, Lynn, value ™"^ * Newcastle-on-Tyne, Hartlepool, and Southampton, for which (stoierSoin they are to give the king 1000 marks per month. Compare TreasS^,' 3.1so Matt. Par. anno 1252, where the ' reditus meras Ed. I.) Regis ' is said to be less than a third of 70,000 marks. It is, however, impossible to fix definitely the value of the pound sterling at any period of the middle ages, though many writers on prices have grappled with the problem. The whole of the conditions of hfe are so completely altered that it is impossible to exclude false assumptions in attempting to make the calculation. The most useful collection of facts relating to the subject, is, perhaps, to 'be found in the ' History of Prices,' by Mr. J. E. T. Rogers. The Treasury liberally granted aid from the Public Record Office for the compilation of the work, and the mate- rials brought together by Mr. F. S. Haydon of that office are of the highest value. The particulars of the robbery of the Royal Treasury have been collected from the following sources. The first commission to enquire. Pp. 199-203. dated June 6, is printed in Rymer's ' Fcedera ' (Record Com. ^fe^ncesto Edition), vol. i. part 2, p. 956, from the Patent Roll, 31 MMeminftiie Edward I., m. 21, d. The functions of the juries under this afte?the"^reat commission were somewhat analogous to those of grand robbery at the juries. Their finding was not to be final, but the persons sury. declared guilty by them were to be imprisoned until the king gave further commands. The second commission, dated October 10 (Rymer, p. 959, from the same Roll, m. 12, d.), appoints justices to hear, and determine the case, and refers to the assertion of the accused abbot and monks that they were wholly innocent ; the juries are to be selected from Surrey and Middlesex. A third and amended commission issued on November 10 (Rymer, p. 960, from the same Roll, m. 9, d.). It is there mentioned that juries are to be summoned from the City of London as well as from Surrey and Middlesex. Both in the second and in the third commission the value of the treasure stolen is estimated at _;^ 100,000. The information laid before tlie justices and the verdicts of the juries under the first commission of enquiry, and under the final commission of November 10 to try the accused, as well as Podelicote's confession, are recorded in rolls which were found among the ' County Bags,' and which are now known as ' Exchequer, Treasury of Receipt, Miscellanea, |f.' From these have been extracted the details which throw suspicion on the abbot and monks, and indicate a conspiracy in which they were concerned with some officials at the Palace. The CHAP. III.] REFERENCES AND NOTES. 467 attempts of the monks who wrote annals to exculpate the men of their own order are excessively feeble. There are two different though very brief accounts of the affair in the ' Chronica et Annales ' of one house. In one place it is stated that the robbery was effected by a single thief, in another that most atrocious traitors and thieves were the culprits. (William Rishanger, Ed. Riley, M.R. series, p. 222 and p. 420.) The judges are, of course, described as perverse, and their conduct as iniquitous in the 'Chronicle of the Monk of Rochester' (Cotton, Nero, D. ii. fo. 192, b., 193) and in Rishanger, p. 225, in the latter of which passages the liberation of the monks is mentioned. But the scandalous discord between the abbot and his monks after they were restored to the Abbey, and the charges brought by one against the other seem to be a sufficient justification of the verdicts given by the juries and of the sentences pronounced by the justices. (Rishanger, p. 420.) The account of the ordeal in the reign of John, and of the hanging of a prisoner who was convicted by it, is from the ' Placdta p. ^o^. Assisarum et Corone,' held at Lichfield in the fifth, and ^nSSngthe at Lincoln in other years of John's reign, which are fully ^n"i°/aboii- transcribed in the Petyt MSS. in the Inner Temple Library. "°"- The abolition of the ordeal in England (a.d. 12 19) appears in a document printed in Rymer's 'Foedera' (Record Com. Ed.), vol. i. part I, p. 154, from the Patent Roll, 3 Henry III., m. 5. The difficulty of substituting another form of trial is there almost ludicrously manifest. The interrupted duel to try the right to an advowson, and the decision of the king and council concerning recreancy, are the subjects of an instrument on the Patent Roll, 55 Hen. III., m. 3. The p ^^ _^^ ' reference was found in the Hale MSS. With the exception References concerning the that the parties could fight in person in the duel which de- Trial by cided a criminal charge, it does not appear that there was any difference between it and the duel which decided a civil cause. In the document to which reference has been made, each champion is designated by a term which implies the use of the fists, ' pugil.' It is generally believed, however, that in the ordinary duel sticks were used. The battle of treason was a very different proceeding, and a full account of it is given at p. 389 from a treatise of the reign of Henry V. written by the King's Armourer and Sergeant. Bracton, lib. iii. c. 22 (fo. 143), is the authority for the examination of the accusing jury by the judges, and for the fact that after examination and challenge the same jury delivered a second verdict, which ,,.,.■• Ir o 1_ \ it i • PP- 206-208. was.final. He also shows, lib. m. c. 19 (fo. 138, b.), that m References the time of Henry III. a person 'appealed' could throw growth'o"f^he* himself upon 'the country,' which would then pronounce p^''^ J "■■>'■ H H 2 468 APPENDIX. [chap. ill. only one verdict. The distinction between the two forms of accusation should be well borne in mind by any one who wishes to understand the growth of trial by jury in criminal cases. Fortescue's 'Laudes Legum Angliae ' (temp. Hen. VI.), chapter 26, shows that jurors were still regarded as witnesses, but that, in civil cases, and apparently in them only, other witnesses were sworn in court and examined before the jury. Pp. 208-209. For the difficulty or impossibility of obtaining a convic- tion by appeal, see pp. 289 and 481 of the present volume. Instances in which persons standing mute (but found by juries to be of ill fame) were hanged in the fifth year of Henry III. are printed, Pp. 2IO-2II. fro'^ the Roll of ' Placita Coron. coram Justic. Itin. Com. «nc"tlngAe Warwic.,' in Emlyn's note to his edition of Hale's 'Pleas of dSre°and"°" the. Crown,' vol. ii. p. 321-323. On the 'Liberate' Roll standingmute. (Chanccry), 3 Edward I., m. r2, is an account of the expenses incurred by the Sheriff of Yorkshire in his attack upon malefactors, ' in quo idem Walterus [the leader of the gang] et quidam fautores sui predicti se secundum legem et consuetudinem regni nostri justiciar! non permittentes decapitati fuerant' The reference to this passage (not correcdy given) was found in the Hale MSS. with the meaning attached to it in the text. The statute relating to the ' prison forte et dure ' for those who refused to stand to the law is 3 Edward I. (Westminster the First), c. 12 (Statutes of the Realm, vol. i. p. 29). The curious case by which the operation of the law is illustrated, and in which, as alleged, a woman was saved from death by starvation through a miracle, is recorded on the Patent Roll, 31 Edward III., Part i. m. ir. Reference has been made to this also in the Hale MSS., and the document has been printed in the ' Fcedera.' The case of maihem cited in illustration of the brutality of manners, which was at once an effect and a cause of punishment by mutilation, is from Pp. 211-213. ' King's Bench, Mich., 7 and 8 Edward I., Ro. 13,' printed femlng^mut™' ^^ Emlyn's notes to Hale's ' Pleas of the Crown,' vol. ii. p. 325. (Edwird^i - '^^^ instance of mutilation to which a man was condemned Edward III.) for an offence committed in the presence of King Edward III. is from the 'Rotulus Calisie, 21 Edward III., No. 22,' to which a reference was found among the Hale MSS. The proper description for reference in the Public Record Office is Patent Roll, 21 Edward III., Part iv. m. 22. The Roll consists of instruments dated at Calais, whence its ancient name. For an indication of the state of the Forest Laws under Canute, see the 'Laws of King Cnut,' Secular, c. 81. The statement that the Forest Laws were of a growtli earlier than the Conquest is confirmed CHAP, in.] REFERENCES AND NOTES^. 469 by such terms as 'Swain-mote,' which seems to have been a court of inferior jurisdiction to that of the Justices in Eyre for forest-pleas, precisely as the ancient shire-moot was, under the Normans, pp. 213-215. a court of inferior jurisdiction to that of the Justices in Eyre ^ncernhigthe commonly so called. ''""' ^™^- For mention of the swain-mote see the Forest-Charter of Henry III., Statutes of the Realm, vol. i.. Charters of Liberties, p. 20. For the provision that none shall in future lose life or limb for taking the king's venison see the same Charter, p. 21. See also p. 20 for the expeditation of dogs, which is the subject of a clause in the ' Assisa de-Foresta ' of Henry II., Benedict Abbas, ii. clxi.-clxiv., and Hoveden, ii. 245-247 (both Ed. Stubbs). The remarks upon the nature of the courts and prisons of the barons, and of the manner in which the barons abused their privileges in the time of Henry III., are founded on Bracton, lib. 3, „ c. 8. fo. 123, b., and on the ' Statutum de Marleberge,' 52 Evidence concerning the Henry III., c. i (Statutes of the Realm, vol. 1. p. 19). privileges of This subject is further illustrated by the ' Placita de Quo Warranto,' and ' Rotuli Hundredorum ' (published by Record Com.), passim. A writ (of the time of Henry III., a.d. 1233) for the conservation of the Peace is printed in Rymer's ' Foedera,' vol. i. part i. p. 209, from Close Roll, 17 Henry III., m. 9, A. Pp. 218-223. Another writ, showing the connection of the Watch and ^n«raSg the Ward with the Assise of Arms, is printed in the 1640 edition onhe'p^ace" of Matthew Paris, four pages before the index, and at the Jjje courts!°the^ end of the Adversaria. The clause relating to an escort for ^"^[j^^tol merchants is also in the same volume (in the ' Auctarium Ad- l''^.?"^" °/i, ^ Justices of the ditamentorum'), p. 1 145. Ve3.ce, &c. The Statute of Winchester (13 Ed. I.) is printed in the Statutes of the Realm, vol. i. p. 96. The parallel clause referring to perjuries in civil actions is in the Statute of Westminster the First (3 Edward I.), c. 38 (Statutes of the Realm, vol. i. p. 36). For provisions relating to Justices of Assise, or Nisi Prius, see the Statute of Westminster the Second, 13 Edward I., c. 30 (Statutes of the Realm, vol. i. pp. 85-6). For those relating specially to Justices of Gaol Delivery, see 27 Edward I., c. 3, and the Statute of Northampton, 2 Edward III., c. 2 (Statutes of the Realm, vol. i. pp. 129-30, and p. 258). An instance of a special commission to try cases not pending else- where occurs in the so-called Statute of Rageman, 4 Edward I. (Statutes of the Realm, vol. i. p. 44). An ordinance respecting ' Trailbastons ' is entered on the ' RotuU Parliamentorum,' 33 Edward I., No. 10 (Printed, 4?o APPENDIX. [chap. hi. vol. i. p. 178). The word Trailbaston appears only in the margin, but the ofifences described are as nearly as possible those which are the subject of special commissions in later years, and of which a full account is given in Chapter IV. An indication of the feeling against special com- missions in general may be detected in the Statute 18 Edward III., St. 2. cc. I and 2, Statutes of the Realm, vol. i. pp. .300-1, in which latter the powers of Guardians of the Peace are defined. See also 34 Edward III., c. i. Statutes of the Realm, vol. i. p. 364, and 42 Edward III., c. 4. A Petition in Parliament concerning persons convicted before Justices of Trailbaston, and afterwards placed on Juries and Inquests to injure their accusers, appears in the ' Rotuli Parliamentorum,' 35 Ed- ward I., No. 63 (vol. i. p. 201). The recommendation of Parliament that there should be elected in each county six Guardians of the Peace, rather than Justices of Trailbaston coming from a distance, was made in 21 Edward III., No. 70 (' RotuH Parliamentorum,' vol. ii. p. 174). It is to chapters 3 and 7 of the Statute of Northampton (2 Edward III.), that reference seems to be made in the special commissions men- tioned in Chapter IV., and in the later Commissions of the Peace. In the reign of Henry VI., the Justices of the Peace are required to enforce the provisions of the older Statutes of Winchester, Northampton, Cam- bridge, and others relating to labourers and liveries. p ^ ^^ The Statute of Treasons, in part, no doubt, declaratory, Tr^onf ^^ ^S Edward III., Stat. 5, c. 2 (Statutes of the Realm, vol. i. pp. 319—20). On the ' Rotuli Parliamentorum,' 5 Edward II., No. 20 (vol. i. p. 283), will be found the accusation and sentence against Piers Gavaston. An p 22 -22 firror which appears in the State Trials has been copied Records, &c., from history into history. It is commonly stated that concerning the ^ ■' ^ cases of Gavastou was to be declared a public enemy only if he re- Gavaston and .... . the De- turned from exile. In the original it is stated explicitly that spensers. . . . . . It IS (W a pubhc enemy he is banished, and that as a pubhc enemy he will be treated should he return. His execution is mentioned in Trokelowe, ' Annales,' p. 77 (Ed. Riley, M.R. Series). The case of the Despensers is illustrated by the Close Roll, 15 Edward II., m. 14, by Trokelowe, 'Annales ' (Ed. Riley, M.R. Series), p. io8,and by the Close Roll, 20 Edward II., m. 3, d., which shows that the barons at Bristol claimed the authority of a Parliament to execute whom they pleased. For the executions, see De la Moor (Camden's ' Anglica, Normannica,' &c., pp. 599, 600). p. 226. "^^^ ^""^ °^ sentence in high treason, with the reasons Early Record for disembowelHug, is from the ' Coram Reee ' Roll ^Queen's concerning the , o \ "^ punishment for Bcuch, Crowu Side), 18 Edward II., Hilary, 'Rex' m -ja d High Treason. . .* ' ' • Ot) "• The reference to this passage was found in the Petyt MSS. CHAP. iii.J REFERENCES AND NOTES. 471 in the Inner Temple Library, ' Theatrum CrimiHalium.' It appears from other parts of the same Roll that some criminals were drawn for treason, and hanged for other offences. It is at this time apparently that the full punishment for treason was invented. The proceedings in the deposition of Edward II. are recorded on the Close Roll, 20 Edward II., m. 3, d., in the 'Apologia Adse Orleton,' ('Decem Scriptores,' col. 2765), and in De la Moor's 'Life pp. 826-227. and Death of Edward II.' (printed in Camden's ' Anglica, ^oSitng tii'e Normannica,' &c., p. 603). The condemnation of Roger ^'P°a1r of ''"'' Mortimer appears on the ' Rotuli Parliamentorum,' 4 Edward Edward 11. III., No. I (vol. ii. p. 52). The judgment against him was annulled in Parliament, and the lands restored to his heir. See ' Rotuli Parlia- mentorum,' 28 Edward III., Nos. 8-12 (vol. ii. pp. 255-6). Mortimer's confession that the Earl of Kent had been wrongfully put to death, and a statement that the Earl had been induced ty means of a conspiracy to believe Edward II. still alive, appear on the 'Rotuli Parliamentorum,' 4 Edward III., Nos. I i-i 2 (vol. ii. Records ^ concerning the p. 55). The story of the Earl, the Friar, and the Spirit is Earl, the Friar, . ^ . ■' ' i^ and the Spirit. given m a letter from Edward III. to the Pope, ' Roman Roll,' 4 Edward III., m. 5, the reference to which was found in the Hale MSS. Commissions to enquire concerning maladministration and oppres- sion are so numerous that it is unnecessary to give a catalogue of them. The great commission of 14 Edward III., relating to all pp. 22,-231. officers, legal, military, naval, ecclesiastical, and financial, is ^rni'ngcorrap- enrolled on the Patent Roll, 14 Edward III., m. 8, d. See ^^""^pfj („ also the same roll, m. 3. The reference to this most im- '^'"=* ■'■ portant instrument was found in the Hale MSS. The Ordinance and Oath of the Justices are printed in the Statutes of the Realm (vol.' i. pp. 303-306). 472 APPENDIX. [chap. iv. CHAPTER IV. Most of the incidents mentioned as being brought to the notice of a p. jjj foreign traveller landing at Dover are described from evi- Snccrabg the dence given in a later page of this chapter. The widow- sceneatDover. pjigrini with her attendants is from Close Roll, 22 Edward III., part i. m. 29, d, In the various records which relate to criminal matters instances are frequent in which the offender takes sanctuary in a church, stays there Pp. 232-233. a considerable time, is, no doubt, fed by sympathising friends, cerning^sTnc- ^"^^ ^-^ length confesscs his crime before the coroner, who juration°of Ae s-tteuds for the purpose of hearing his statement. The realm. coroner, after the criminal has taken the oath of abjuration, assigns him a port, and gives him a definite number of days in which he is to reach it. The time allowed for travelling from Yorkshire to Dover is mentioned in a passage which is in other respects illustrative of the whole subject, and is to be found on the ' Placita Corone,' 22 Ed. III., County of York. A jury presents that one William of Coventry took sanctuary in the church of Thweng, and remained there from Sunday the 9th to Friday the 21st of December, when he confessed- various robberies before the coroner, and abjured the realm. ' Et dati sunt ei novem dies usque portum de Dovof. ad transfretandum mare.' Other ports are of course mentioned sometimes, but Dover was certainly the chief place of embarkation for the Continent. For the attack by the seamen of the Cinque Ports upon the ship sent as a present to Edward, son of Henry III., see Matt. Par., ' Hist.' Pp. 233-234. Major and Minor, anno 1254. Winchelse^ was the port Snc°erntng Ae chicfly, if not wholly, concerned in the outrage. For subse- CinqSePortf 1"^°*^ piracies, see Close Roll, ii Edw. II., m. 2r, d. : 'De &<:■ ' Discordiis inter Barones Quinque Portuum et Flandrenses reformandis,' which seems to show that the Cinque Port men had been . acting without orders. See also Patent Roll, 15 Edw. III., pt. i. m. 44 : ' De Fredere et amicitia inter Quinque Portus et Civitatem Baionse.' These with many other documents, showing the prevalence of piracy, are printed in Rymer's * Foedera.' It is hardly necessary to cite a number of passages for the purpose CHAP. IV.] REFERENCES AND NOTES. 473 of showing that saddle-horses and pack-horses carried travellers and much of the merchandise of the fourteenth century. The „^p- =34-^3S- .' Records con- carriage of the Chancery Rolls on horseback is mentioned cemingajour- " ^ ney from on theClose Roll, 22 Ed. III., part ii. memb. 16, dors. The Doverto Lon- '^ . . don m the i4tli authority for the famme m Kent, which was at this time century. caused by the war (and which must have been chronic, like war itself), is the Close Roll, 22 Ed. III., part i. memb. 29, dors. The description of a traveller's reception upon his arrival at a walled town in the evening is founded on the Statute of Winchester, which was confirmed in all points by the Statute of Northampton in the reign of Edward III., and was long afterwards enforced. The sketch of Southwark and of the City of London is from the text of the ' Liber Albus ' (Munimenta Gildhalte Londoniensis), which has been edited for the Rolls Series by Mr. Riley, in whose Pp. 235-238. Introduction all the most important points have been very ceming'^scen°'s clearly arranged. There seems to have been no important change in City crimes and City punishments from the time of Edward I. to that which is now under consideration. The account of the lepers on the road from London to Westminster and the royal proclamation concerning them are from the ^^^^^^^°- Close Roll, 22 Ed. III., part i. memb. 25, dors. conceminethe ' ^ road from Lon- For the incident of waxing the body of Edward I. the don to west- . , mmster, West- authority is the Close Roll, 22 Ed. III., part 1. memb. 19. minsierAbbey, The state of the highway near Westminster Abbey is SS'erl.'^™" described in the Controlment Roll, King's Bench, 22 Ed. III., memb. 13, Middlesex. The ' Almorigate ' was the Almonry Gate, afterwards still further cormpted into the Ambrygate, as mentioned by Stow. The order for the repair of all bridges between Stratford and Hert- ford will be found on the Close Roll, 22 Ed. III., memb. R^,„Xsht.w- 6, dors. It is so worded as to imply that they had not only Jjs *y^^^'^ become faulty, but had in some cases altogether disappeared. &c. The sheriffs are to have as many bridges made as there used to be. For instances of liability to repair bridges, &c., disputed by the clergy, reference may be made to the Controlment Roll (King's Bench), 22 Ed. III., memb. 16 and memb. 19, dors., which show that the Abbot of Eynsham refused to maintain the town bridge of Cam- bridge, then broken and in ruins, and memb. 17 and memb. 21, which show that the Abbot of Westminster refused to maintain Pershore Bridge. For the abundance of pools, fish-ponds, and other waters, see the Patent Roll of the year, passim. A den of robbers on the highway is thus described in the ' Placita Corone,' 22 Ed. III. ; ' Quidam latrones ignoti in campo de Denyng- ton, in 'quodam loco vocato le Covyng, qui est spelunca latronum in 474 APPENDIX. [chap. iv. Regia Strata noctanter interfecerant . . . et eui» de bonis et catallis, P. ^^,. &c., ad valenciam vi. s viii. d depredaverunt. Sed Juratores SmSg'denTof ^icunt quod nuUi de personis latronum habuerunt noticiam.' robbers. ^Qx ordinary robberies of merchants on the road, see also the Gaol Delivery Rolls, 22 Ed. III., Lynn, Aylesbury, &c. Acts of brigandage, or similar acts, are the subject of no incon- siderable portion of the Roll of Letters Patent of 22 Edward III. p ^ ^ ^ Commissions of enquiry for almost every county are Records there enrolled, and usually contain a description of the concerning , , brigandage, offenccs Committed. The mjury done to the Abbot of the capture of . . _,._.. Bristol, the Abmgdon at the time of his fair is mentioned m part want of respect . r.* »r • irii- for royal 1. memb. 38, (1. A lavounte place of attack dunng ony, c. fg^jj. jjjjjg ^^^ Boston. In the year 1288 a gang of robbers clad as monks set fire to the whole town, and committed murder and robbery as they pleased. It was said by the imaginative chroniclers that streams of molten gold flowed from the burning town to the sea. In the year before the Black Death there had apparently been a similar riot, for there is on the Patent Roll, 22 Edw. III., m. 8, a pardon to forty-three persons who had been guilty of assuming the royal power, confederacies, conspiracies, &c., at Boston. The offenders are described as men of Boston, but there were commonly traitors in the camp. A minor nocturnal disturbance at Yarmouth during market time appears on the Controlment Roll (King's Bench), memb. 76, Norfolk. The successful attack upon Bristol and its shipping is recorded partly in the Patent Roll, 22 Ed. III., part i. memb. 44, d., and partly in the Patent Roll, 21 Ed. III., part L memb. 19, and part ii. memb. 28, d. The truth, however, of the general statements in the text is better estab- lished by the whole tenour of the various commissions of enquiry, &c., enrolled on the back of the three parts of the Patent Roll for the year, than even by the particular passages to which reference has been made. The capture of a prisoner of war by a gang of robbers from the knights who were guarding him is the subject of an entry on the Patent Roll, 22 Edw. III., part i. memb. 43, d. ; the taking of Queen Isabella's horses and wine, and the attack upon the ship of the envoy returning from Spain, appear on the same part, membrane 14, d. On the Patent Roll of the same year, but on the second part, membrane 37, d., is an account of the loss of the Black Prince's horses and carts, and on membrane 20, d., an account of the assault on ' Queen Philippa's Mer- chant,' of the burning of his house, and of the robbery of her jewels. The onslaught upon her collector of rents, the restitution of the £, Hunts ; m. 19, Hunts ; and m. 67, Yorkshire, tive monks. Similar cases were by no means uncommon ; see the Gaol Delivery Roll, Bury St. Edmunds, Friday after the Feast of St. Matthew CHAP. IV.]. REFERENCES AND NOTES. 485 the Apostle, for an instance in which two clerks were convicted of church-breaking. The case of sacrilege at Scarborough is recorded on the p Controlment Roll, m. 65, d., Yorkshire. For another case, ^ec^ds con- see Gaol Delivery Roll, Melton, Easter. llgT^ '""" The lines quoted from Chaucer in illustration of the manners of the clergy are from the well-known prologue to the ' Canterbury „ rp , , J. D •'Pp. 309-312- 1 ales. Chaucer and The lines from the ' Vision of Piers Plowman ' are within a few of the beginning of the work. The language has been so far modernised in the text as to make it generally intelligible. The assertions made (in illustration of the state of education) with respect to the languages in which the Year Books or Legal Reports of Cases, the Treatises on Law, and the Public Records were p ,i2_3,6. written, are founded on actual inspection of the documents J^^^''^^. &c., ' ^ concerning the mentioned. The Statute which provides that pleadings shall tioi^in the """Th be in English is 36 Edward IIL, c. 15. The Statute by which century, the distinction between Norman and Englishman was abolished, in the abolition of the Presentment of Englishry, is 14 Edward IIL, Stat. i. c. 4. The proclamation in English, of the reign of Henry IIL, is enrolled on the Patent Roll, 43 Henry IIL, m. 15 ; the proclamation in French, of which it is a translation, on the Patent Roll, 42 Henry IIL, m. I. French of the school of Stratford-atte-Bow is mentioned, as spoken by the Prioress, in the prologue to the ' Canterbury Tales.' The inability of the common . people to understand any language but English is estabhshed by the ' Rotuli Parliamentorum,' 21 Edward IIL, No. 64 (vol. ii. p. 173), as well as by the statute 36 Edward IIL, c. 15. The account of the Black Death and of its immediate effects is principally from the ' Chronicle of Knighton,' sub ami. This is con- firmed by the absence of certain records belonging to an p^ jjg.jji. otherwise contniuous series. Mr. Seebohm has found ad- denceconcem- ditional evidence in the records of institutions to livings pf^'h^nd^S after the plague, and has given the proportion of deaths among importance, parsons in the ' Fortnightly Review,' vol. ii. p. 149. To him also is due the credit of being the first to point out the great importance of this plague in the social history of England. Note. — Wherever, in the references to Chapter IV., a roll is men- tioned without date, it is to be understood that the 22nd of Edward III. is the year to which the roll belongs. 486 APPENDIX. [chap. CHAPTER V. The Statute of Labourers is the title usually given to the Statute i. of 23 p Edward III., cc. 1-4, by which also innkeepers and dealers Jhe Statute jn provisions are required to sell their goods at prices fixed in the Act. _ The authorities for the condition of slaves and churls Pp. 324-327. Evidence for before the Norman Conquest are given in Chapter I. the history of i o jr slavery and (References and Notes, pp. 437-438, 445). deed af sale In Domesday Book ' servi ' and ' villani ' are mentioned, in full. passim. Exportation of slaves is forbidden in the ' Laws of the Conqueror,' iii., 15, to which reference has already been made (C. I.). Deeds relating to the sale of villeins may be seen in Madox's 'Formulare Anglicanuni^' Nos. 314, 315, 399, 410, 556, 756, 757-762. Subjoined is a specimen (with full details) from another source : — (Extended according to the contemporaneous spelling.) Miscellanea, Duchy of Lancaster, London, 825. Public Record Office. ^Endorsed.^ Carta Galfridi de Scalariis de Johanne filio Roberti native suo empto apud Corneye. 'Sciant presentes et futuri quod Ego Galfridus de Scalariis filius Hugonis dedi et concessi et quieteclamavi et presenti carta confirmavi Deo et Ecclesie Sancte Trinitatis, Londonie, et Ricardo Priori et Canonicis ibidem Deo servientibus, Johannem filium .Roberti de Wydyhale, nativum meum, cum tota sequela sua, que de eo exiit, vel exibit, inper- petuum, cum omnibus catahis eomm, que habent vel habituri sunt — ■ scilicet quicquid juris in dictis Johanne, et tota sequela sua,- et catallis eorum habui, vel habere potui, sine aliquo retenemento — Habendum dictis Priori et Canonicis et eorum successoribus, extra me et heredibus meis inperpetuum. Pro hac autem donatione, concessione, quietaclama- tione, et presentis carte confirmatione, memorati Prior et Canonici dederunt mihi Galfrido sex marcas argenti. Hiis testibus,' etc. CHAP, v.] ' REFERENCES AND NOTES. 487 The value of the 'nativus' varied probably with the number of his ' sequela.' A man without any family was sometimes not worth more than a pound. In the ' Formulare' (Nos. 750, 751, 752)are deeds of enfranchisement anterior to the Conquest. The commission to receive fines for manu- mission from the king's villeins (Ed. III.) is printed in p Rymer's 'Foedera,' Record Com. Edn., vol. ii., pt. ii., p. Records show- 1038, from the Patent Roll, 12 Edward III., part ii., m. 20. ring of free ... .. .. labour. Instances m which ' nativi were manumitted upon payment of money to other lords are given in the 'Formulare' (Nos. 754 and 755- The Statute of Labourers was re-enacted, with little alteration, in 25 Edward III., and subsequently, and commissions to enforce it and to punish those who violated it are of frequent occurrence on the later Patent Rolls. In the end it became usual to mention the Statute in the commissions to Justices of the Peace. It appears by the Close Roll, 35 Edward III., m. 30, and m. 2r, printed in Rymer's 'Foedera' (Rec. Com. Edn.), vol. iii. pp. 616 and 621, that there was a return of the plague in the year 136 1. For the doctrine of equality taught by ' the unorthodox p preachers of the period, see Froissart, ii., 73, and Walsing- Doctrine of ham, ' Hist Angl.,' vol. ii., pp. 32-34 (M.R. Series). For orthodox the Apostate Monks, see Chapter IV. of the present work, pp. 308, 484. For the claim of the villeins to freedom, asserted on the ^^p- 329-331- Records lUus- faith of transcripts from Domesday Book, see the Statute trating the claim of the I Richard II., c. 6, which was repealed by 2 Richard II., villains to be „ . . free, btat. 11., C. 2. The case in which the condition of a recognisance (made in the time of Henry VI.) was that the collector of the Bishop of Durham should become a ' nativus ' if he failed to pay his arrears, occurs on the Cursitor's Roll, No. 4 [BB.] of Bishop Neville [Public Record Office], memb. 12, d. The outline of Wat Tyler's rebellion is from Knighton (' Decem Scriptores '), 2633 et seq., and from Walsingham's ' Historia Anglicana ' (M.R. Series, Ed. Riley), vol. i., p. 453 et seq., and vol. ii., p^ ^^^_^^^ pp. 1-34. The connection of the movement with ecclesias- Evidence of tical questions is made sufficiently clear by the release of chronicles, , . , , • 1 > • J i_ r Songs, &c., John Ball from the Archbishop s prison, and by a reference for the details to Piers Plowman in the words attributed to Jack Carter, Rebellion^ one of the leaders, by Knighton. The subsequent petition of land- holders incidentally mentioned, that no villein should be taught to read, appears on the ' Rotuli Parhamentorum,' 15 Ric. II., No. 39 (printed 488 APPENDIX. [chap. V, vol. iii., p. 294). The particulars relating to the Duke of Lancaster are from the Patent Roll, 6 Rio. II., part ii. m. 6 : Pardon of John Cote. The reference to this passage was found in the Hale MSS. The par- ticulars relating to Richard Lyons are from the 'Rotuli Parliamentorum,' 50 Edward III., Nos. 17 and 31 (printed vol. ii., pp. 323-4 and327). The restitution of his goods through the alleged influence of AUce Perers, is mentioned in the \R. P.,' Richard II., No. 41 (printed vol. iii., p. 12). Some of the details of Sudbury's death, together with a lament on the want of heart shown by the gentlemen on this occasion, are to be found in a song of the period, published in the M.R. Series ('Political Poems, &c.,' Ed. Wright), vol. i., pp. 227-230. The bitter animosity between the Lollards or Wycliffites and the orthodox clergy is well illustrated by other poems in the same volume — some written on one side, and some on the other. See pp. 231-250, 263-268, &c. The general coarseness of the age appears here as elsewhere. The word impeachment has assumed a restricted and technical sig- nification only in later times. William of Wykeham was ' impetitus,' as Pp. 338-340- an ordinary criminal might have been in his day for an peachment." ordinary offence before an inferior tribunal. The charges Records con- ^ ^ cerningthe brought Egaiust him, and the subsequent transactions, are charges ^ . . against wii- recorded m the Patent Roll, 1 Richard II., part 1., mm. 23 liam of Wyke- , ^, . ^ ' . , ^ , , ham, the and 24. 1 here is an Inspeximus of the same documents Nonvich, &c. in part ii., mm. i and 2, where it is stated that the pardon was confirmed with the unanimous consent of the Great Council. The references to those documents were found in the Hale MSS. Similar charges against the Bishop of Norwich, who was condemned, appear in. 'Rotuli Parliamentorum,' 7 Richard II., No. 15 (Printed vol. iii., p. 152.) An inspection of these Rolls of Parliament will suffice to con- vince anyone that accusations and counter-accusations, attainders and reversals of attainder, were the ordinary events of public life at the period. The general pardon of felonies, granted in the fiftieth year of the reign of Edward III., with the express declaration that William of Wykeham ' should nothing enjoy of the said graces,' appears among the Statutes of the Realm, 50 Ed. III., c. 3 (Vol. i., p. 397). The diversion of tithes from one of their proper objects — the support of the poor — is mentioned in the Statute 15 Richard II., c. 6, by which it is enacted that in future no licence for Appropriation shall Fp. 340-342. ^ . J. x^ 1 References be given cxccpt whcH a fitting sum has been set aside to be concerning Ap- ° ^ propriations, distributed yearly among the poor, and when a fitting misapplication ... , , - , ,t. .^, „ _ of tithes, and provisiou has been mane for the Vicar. The Statute of isSonwith 1388, concerning beggars and vagrants, is known as 12 the clergy. ^^^^^^^ jj^ ^_ ^ CHAP, v.] REFEREl^CES AND NOTES. 489 Among the political songs and poems of the period, to which reference is made in the text, may be mentioned : ' The Complaint of the Ploughman,' Ed. Wright, M.R. Series, vol i., pp. 324-346, and the three pieces which follow it, pp. 346-362, ' The Corruptions of the Age,' ' On the Vices of the different Orders of Society,' and ' On King Richard II.' See also vol. ii., pp. 1-114, the Complaint of 'Jacke Upland,' a Lollard, the Reply of Friar Daw, and the Rejoinder of Jacke. In the last appears the charge, made against the friars, of kidnapping children, which is the subject of complainb and redress in the ' Rotuli Parliamentorum,' 4 Henry IV., No. 62 (vol. iii., p. 502). The suggestion of the Commons that the money required by the king should be taken from the alien priories appears in the ' Rot. Pari.,' 4 Henry IV., No. 48 (vol. iii., p. 499), as well as earlier. p. 343- There was an ordinance against tliem in 13 Ric. II., and showing'the" they were finally suppressed by the Statute i Hen. V., c. 7. ?yi\^and°"" An important Statute against papal provisions was 2 Hen. '"'^ ' IV., c. 3. The petition of the Commons that in cases of appropriation a secular vicar should be appointed, and the king's consent, appear on the 'Rot. Pari.,' 2 Hen. IV., No. 52 (vol. iii., pp. 499-500). It is laid down in the later law-books that the writ ' de heretico com- burendo ' existed at the common law before the Statute 2 Henry IV., c. 15, gave authority to the sheriff to burn heretics without a special pp. 343-344. writ ; and this opinion is to a certain extent confirmed by ^nceSng the Bracton, &c. See Hale, ' Historia Placitomm Coronse,' vol. utefor"buming i-, PP- 383-39S ; Coke, 'Instit.,' part iii., pp. 39-43- Both i":'-^""- Hale ('P. C.,' vol. i., p. 397) and Fox (' Acts and Monuments,' i., 773) discuss the question whether the Statute had the assent of the Commons, Hale taking one side. Fox the other. Bacon, in the con- cluding paragraph of ' A Preparation for the Union of Laws,' denies the existence of any Statute for the burning of heretics, but admits the king's writ ' de heretico comburendo ' as part of the common law. It seems, however, difficult to explain away the thanks offered by the Commons to the king at the end of the session for the remedy ordained in destruction of the heretical doctrines and sects, ' Rot. Pari.,' 2 Hen. IV., No. 47 (Printed vol. iii., p. 466). The writ for the execution of Sautre, dated before the passing of the General Act for the punishment of heretics, appears on the ' Rotuli Par- liamentorum,' 2 Henry IV., No. 29 (vol. iii., p. 459)- It Pp. 344-346. ' , . \ ■! - -o r Kecords con- issued bv authority of the kmg and council m Jr'ania- cemingthe ^ -^ execution of ment. Sautre, and Writs ' De Lolardis arestandis ' in the various counties of othef™"™ will be found on the Patent Roll, 9 Henry IV., part i. and ^°""'^'- 10 Henry IV., part i., and probably also elsewhere. An execution 490 . . APPENDIX. [chap. V. by fire, possibly that of John Badby, is mentioned in the ' Eulogium Historiarum sive Temporis,' a contemporary chronicle (Ed. Haydon, M.R. series), vol. iii;, pp. 416-417. The writ for Badby's execution is in the ' Foedera,' Original Edition, vol. viii., p. 627, from the Close Roll, II Henry IV., m. 18. a- The documents which relate^^the sentence upon Oldcastle are the indictment on the ' Coram Rage ' Roll (King's Bench, Crown Side), i Henry V., Hilary, Rex, Ro. 7, the outlawry of Oldcastle and many others, on the same Roll, Ro. 13, and the Proceedings in Parlia- Pp. 346-351. ... Records of the ment, 5 Henry V. The Proceedmgs m Parliament are against Sir printed, 'Rotuli Parliamentorum,' vol. iv., pp. 107-110, and cast"e, Blake, Seem to be the only documentary evidence on the subject seen either by Fox, who deals with the matter in his ' Acts and Monuments,' or by the editors of the ' State Trials,' who make in words the accusation of forgery implied by Fox. The arguments of Fox from the internal evidence of the indictment as it appears in the ' Rot. Pari.' are of no great weight, nor indeed would it be possible to estabhsh such a charge as forgery except by reference to the original on the King's Bench Roll. In support, therefore, of what has been said in the text the indictment has been transcribed in full from the ' Coram Rege ' Roll, and is now printed, it is believed, for the first time. The points in which it differs from the Parliamentary transcripts and the erasure are also indicated. Extract from the ' Coram Rege'' Roll, i Henry V. {King's Bench, Crown Side), Rex, Hilary, Ro 7. (The contracted Latin of the original has been extended, but no other alterations have been made in the spelling). ' Adhuc de Termino Sancti Hillarii. Rex. Middlesex. Alias coram Pp 6- 51 Willelmo Roos de Hamelak, Henrico Lescrop Willelmo ment'ofOM- Crowcmcre, Maiore Civitatis Londonie, Hugone Huls, '^^d A ^'^''°' ^^ ^o*-"^ ^^^i^' Justiciariis domini Regis ad inquirendum copied veria- per sacramentum proborum et legalium hominum de /iw from the . . . . ^ . ^ ^ . - , .. . - •Coram Rege' civitate domini Regis Londonie et suburbus ejusdem ac Roll, and com- , . ^ ^. ^ ^^ ._,., , pared with the dc comitatu Middlesex, tam mira libertates quam extra, de exhibited in omnibus ct singulis prodicionibus et insurreccionibus per ar lament. quamplurcs subditos domini Regis LoUardos vulgariter nun- cupatos et alios in civitate, suburbiis, et comitatu predictis, factis et perpetratis, necnon de omnibus prodicionibus insurreccionibus, rebel- lionibus et feloniis in civitate, suburbiis, et comitatu predictis per quos- cumque et qualitercumque factis sive perpetratis et ad easdem prodiciones, insurrecciones, rebelliones, et felonias audiendum et terminandum CHAP, v.] REFERENCES AND NOTES. 491 secundum legem et consuetudinem regni domini Regis Anglie [' per literas ipsius domini Regis patentes assignatis, apud Westmonasterium, die Mercurii proxima post festum Epiphanie Domini, anno regni Regis Henrici quinti post Conquestum primo, per sacramentum xii juratorum extitit presentatiim quod Johannes Q-ldecastell de Coulyng in Comitatu Kancie, Chivaler, (* dominus] Waltprus Blake de Bristoll capellanus, Rogerus Acton de Salopia in comitatu Salopie, Chivaler), et alii, Lollardi vulgariter nuncupati, qui contra fidem catholicam diversas oppiniones hereticas et alios errores manifestos legi catholice repug- nantes, a diu est, temerarie tenuerunt, oppiniones et errores predictos manutenere aut in facto minime perimplere valentes quam diu regia potestas et tam status regahs domini nostri Regis quam status et officium prelacie dignitatis infra regnum Anglie in prosperitate perseverarent, falso et proditorie machinando tam statum regium quam statum et officium prelatorum necnon ordines religiosorum infra dictum regnum Anglie penitus adnullare, ac dominum nostrum Regem, fratres suos, prelatos, et alios magnates ejusdem regni interficere, necnon viros religiosos, relictis cultibus divinis et religiosis observanciis, ad occu- paciones mundanas provocare, et tam ecclesias cathedrales quam alias ecclesias et domos religiosas de reliquiis et aliis bonis ecclesiasticis totaliter spoliare ac funditus ad terram prosternere, et [dictum'] Johannem Oldecastell regentem ejusdem regni constituere, et quamplura regimina secundum eorum voluntatem infra regnum predictum quasi gens sine capite in finalem destmccionem tam fidei cathohce et cleri quam status et majestatis dignitatis regalis infra idem regnum ordinare falso et proditorie ordinavenmt, et proposuenmt quod ipsi insimul cum quam- pluribus rebellibus domini Regis ignotis ad numerum viginti millium hominum de diversis partibus regni Anglie modo guerrino arraiatis privatim insurgerent, et die Mercurii proxima post festum Epiphanie Domini, anno regni regis predicti predicto, apud villam et parochiam Sancti Egidii extra Barram veteris Templi Londonie in quodam magno campo ibidem unanimiter convenirent et insimul obviarent pro nephando proposito suo in premissis perimplendo Quo quidem die Mercurii apud villam et parochiam predictas predicti (Walterus, Rogerus <) et alii in hujusmedi proposito proditorie perseverantes predictum dominum nostrum Regem, fratres suos videlicet Thomam Ducem Clarencie, Jo- hannem de Lancastre, et Humfridum de Lancastre, necnon prelatos et ' The passage in brackets is written on an erasure, in a different hand, and with lighter ink. 2 The passage in a parenthesis is omitted from the Roll of Parliament. » The word ' dictum ' is interlined in a different hand, with lighter ink.- * For the two names in a parenthesis the one name 'Johannes Oldecastell' is substituted in the Roll of Parliament. 492 APPENDIX. [chap. v. magnates predictos interficere^ necnon ipsum dominum nostrum Regem et heredes suos de regno suo predicto exheredafe, et premissa omnia et singula necnon quam plura alia mala et intollerabilia facere et perimplere falso et proditorie proposuerunt et imaginaverunt, et ibidem versus campum predictum modo guerrino arraiati proditorie modoinsur- reccionis contra ligeancias suas equitaverunt ad debellandum dictum dominum nostrum Regem nisi per ipsum manu forti gratiose impediti fuissent. Quod quidem indictamentum dominus Rex nunc certis de causis coram eo venire fecit terminandum. Per quod preceptum fuit Vicecomiti quod non omitteret quin caperet (eos *) si etc. (Et ^ modo, scilicet die Mercurii proxima post Octabas Sancti Hillarii isto eodem termino, coram domino Rege apud Westmonasterium venit predictus Walterus in custodia Marescalli ductus, in cujus custodiam perantea occasionibus predictis per consilium domini Regis commissus fuit. Et super premissis allocutus qualiter se velit inde acquietare dicit quod ipse in nullo est inde culpabilis. Et inde de bono et malo ponit se super patriam. Ideo venit inde jurata coram domino Rege apud Westmonas- terium die Sabbati in quindena Sancti Hillarii. Et qui etc. Ad 'recogn, etc. Et interim predictus Walterus committitur Marescalcie etc. Ad quos diem et locum coram domino Rege venit predictus Walterus in custodia Marescalli. Et juratores exacti similiter venerunt, qui, ad veritatem de et super premissis dicendum electi, triati, et jurati, dicunt super sacra- mentum suum quod predictus Walterus culpabilis est de premissis superius sibi impositis et quod ipse nulla habet bona seu catalla, terras seu tenementa. Ideo consideratum est quod predictus Waltems Blake distrahatur et suspendatur. Postea, scilicet die Veneris in Octabis Purificacionis beate Marie Virginis, isto eodem termino, coram domino Rege apud Westmonasterium, venit predictus Rogenis Acton per Thomam, Comitem Arundell, et Thesaurarium Anglie, de precepto domini Regis personaliter ductus, qui instanter allocutus est qualiter de prodicionibus et feloniis predictis superius sibi impositis se velit acquie- tare, qui dicit quod ipse in nullo est inde culpabilis. Et inde debono et malo ponit se super patriam. Ideo venit inde jurata coram domino Rege apud Westmonasterium die Sabbati proxima post Octabas Purificacionis beate Marie Virginis. Et qui etc. Et ad recogn etc. Et interim pre- dictus Rogerus Acton committitur Turri Londonie per breve domini Regis de recordo hie in Curia etc. Ad quos diem et locum coram domino Rege hie venit predictus Rogerus per Constabularium Turris predicti ductus. Et Juratores exacti simiKter venerunt qui ad veritatem de et super pre- ' For this word, the words ' prefatum Johannem Oldecastell ' are substituted in the Roll of Parliament. '^ The whole of the long passage in a parenthesis is omitted from the JRoU of Parliament, CHAP. V.J REFERENCES AND NOTES. 493 missis dicendum electi, triati, et jurati dicunt super sacramentum suum quod predictus Rogenis Acton culpabilis est de premissis superius sibi impositis et quod ipse nulla habet bona seu catalla terras seu tenementa. Ideo consideratum est quod predictus Rogerus Acton ducatur abinde usque Turrim domini Regis Londonie et quod ipse ab eadem Turre distrahatur per medium Civitatis predicte usque novas Furcas in campo Sancti Egidii factas et quod ibidem suspendatur. Et sic suspensus pendeat ad voluntatem domini Regis. ' Et, quia predictus Johannes Oldecastell se coram domino Rege occasione predicta non reddidit, pre- ceptum fuit Vicecomiti quod non omitteret etc. quin caperet eum si etc."), and the usual proceedings in outlawry follow. At the foot of the skin are the words : ' Memorandum quod Willelmus Hankeford, miles, Capitalis Justiciarius Anglic, die Martis proxima post festum Sancte Lucie Virginis anno regni regis Henrici Quinti quinto, de precepto domini Johannis Ducis Bedford Custodis Anglie detulit coram ipso Custode et magnatibus Anghe in pleno parliamento apud West- monasterium tunc tento recordum et processum predicta quo ad dictum Johannem Oldecastell in parliamento predicto auctoritate ejusdem par- liament! ad tunc ibidem exequend. et terminand.' Little more light is thrown upon the matter by a document of the next reign (Patent Roll, 7 Henry VI., part i. m. 19, d.), by which an enquiry is directed concerning some of Oldcastle's lands claimed by his son as having been entailed, and therefore, performam doni, not forfeited for treason. The words, however, in which the authority for Oldcastle's execution is there described show how the matter was regarded in the reign of Henry VI. : 'auctoritate ejusdem parliamenti, ibidem, et virtute utlagarie predicte.' The contemporary song in which there is an allusion to Oldcastle, and a contempt expressed for persons who study to gain the approba- tion of Lollards, is printed in the ' Political Poems and Songs,' _ Ed. Wright, vol. ii. p. 245. It is possible, indeed, that the Note and ° , X rw» a. ? reference con- word ' study ' is used merely as a sraonym for ' strive,' and has ceming the _ , . T . 'unchivalrous- no reference to the study of letters, but the prejudice against ness ' of independent investigation is sufficiently established by the persecutions of the time. The form of commission directed to a bishop for the _ .,.,.,. . . . . '^p- 353-356. arrest of sorcerers, &c., withm his diocese is printed m ^"j,°'^i;,^\' Rvmer, vol. viii. p. 427 (Original Edition), from the Patent Maid of Or- ^ ' . leans, and the Roll 7 Henry IV., part 1. m. 22. se?rchfor Witches under The terror excited in the English troops by the supposed Henry iv. and incantations of the Maid of Orleans is the subject of docu- ™'^ ments printed in Rymer, vol. x. pp. 459, 472, from the Close Rolls, 8 ' The outlawry process against Oldcastle is in a different hand, and written with lighter ink. That fact, however, considered alone, would not be of any importance, 494 APPENDIX. [chap. v. Henry VI., m. ii d., and 9 Henry VI., m. 23. Some particulars are also given in Fabyan, anno 8 Henry VI. A writ for the arrest of Northfeld, suspected of sorcery, is printed in Rymer, vol. x. p. 505, from the Patent Roll, 10 Henry VI., part ii. m. 13 a. In the same volume and page is a document (Bib. Cott., Cleop., F. 4) relating to the appearance of accused persons before the Council. See also Proceedings and Ordinances of the Privy Council (Ed. Sir Harris Nicolasj Record Commission), vol. iv. p. 114. The reward for witchfindefs (1441), (printed from the Pell Rolls) appears in the same volume of Rymer, p. 852. The account of the trial of the Duchess of Gloucester for witch- craft is from the Patent Roll, 19 Henry VI., part ii. m. 16, printed in p g_ g Rymer, vol. x. p. 851, from Fabyan, annis 19 and 20 Henry Records, &c., VI., and from the contemporary song quoted in the text, Trial andPen- . ' Lament of the Duchess of Gloucester ' (' Political Poems ance of the . . . . . Duchess of and Songs, vol. u. pp. 205-208), a composition not devoid Gloucester. _ . . of a certain pathos. The imputations against the Duchess of Bedford and her daughter are from the Patent Roll, 9 Edward IV., part ii. m. 5 (in which the ex- Pp. 358-360. emplification of the Privy Council Proceedings is enrolled). of^BSforiTand ^^6 dociiment is printed in the ' Rotuli Parliamentorum,' her daughter. ^q\_ yj_ p_ 332. The renewal of the charge when the throne was offered to Richard appears in the same volume, p. 241. _ ^ ^ Particulars of the trial of Burdett and his accomplices for Pp. 300-302. ' -^ Burdett and Constructive Treason, in calculating the time of the king's death by forbidden arts, appear in the Records of the King's Bench. The particulars of Clarence's attainder are from the ' Rotuli Par- liamentorum,' 17 Ed. IV. (vol. vi. p. 193). Fabyan p. 266 tells of the butt of wine. The well-known story of Jane Shore is from the well-known source Pp 362-363. Sir Thomas More's ' Historia Ricardi Tertii,' p. 18 (Frank- jane Shore. fort Edition of 1 689). Some of the remarks concerning the development of the art of printing were suggested by an exhibition of early specimens of printed Pp. 363-367- books at the rooms of the Archaeological Institute, ferencescon- The increase in the demand for parchment will be ap- Fmroduction of parent to any one who compares the records of any of the reiSimf to"^ courts at the end of the fourteenth century with the same The'l^o'wT of classes of records as they were made up a century or two feSureT&c"" earher. Their bulk is many times multipHed, and there is as there would have been no irregularity in entering the outlawry process (which required a considerabla time) after the earlier enrolment of the indictment. There is n6 doubt that the outlawry considered alone was effected in due course, as shown by m. 13 of this Roll, but the facts relating to the indictment speak for themselves. CHAP. V.J REFERENCES AND NOTES. 495 no doubt that the demand elsewhere corresponded with the demand apparent in the English law courts. The exact date at which paper was first made from cotton is not known. There are instances of its use at the beginning of the fourteenth century. The earliest known specimen of linen paper in England seems to have been used in the year 1337. {See Rogers' ' History of Prices,' preface to vol. ii. p. xviii., where there is a description of a piece used for the accounts of Merton College.) This was of the rudest possible fabric. Before the year 1388 the art was developed so far that its utility could no longer be doubted. The paper made in imitation of parchment is described in Toulmin Smith's < English Gilds ' (published by the Early English Text Society), p. 132, and Preface, p. xliv. In the same work, p. 44, will be found the description of the piece of ruled vellum taken out of a book and used for a return to Parliament. Mr. Smith went through the whole of the original writs and returns made in obedience to the order of ParUament in 1388, and now in the Public Record Office. The details given by him, throwing light as they do upon the very period at which the art of paper-making was developed, are, therefore, of very considerable value. It matters little whether we regard the printer's type as a numberof frag- ments of seals or as anumber of smallseals each complete in itself. The fact remains that when printing was invented there was nothing new in it except the manner of arranging the letters and the manner of taking the im- pression. Stereotyping on wax had been known from time immemorial. The remarks concerning the use of a seal alone, on occasions when according to modern custom a namewould be signed,need no justification to-those who are familiar with the most ancient deeds. The use Pp- 367-368. of the seal, which was really equivalent to a signature, has not. References . . . . concerning the indeed, even yet died out, for ancient practices remain when ancient use of they have become meaningless. But many binding contracts ^^ ^" ^°"' can now be made without the use of any seal at all. The ancient equivalent for the modern felony known as forgery, and the difficulties to which its definition gave rise, are illustrated by the cases of ' Johannes de Bosco,' who transferred a seal by means of a heated knife (' Coram Rege ' Roll, 6 Ed. II., Easter, Ro. 2, Essex — Emlyn's Hale, Note, p. 180); of Pluntynton and Clinton, which was similar (' Coram Rege ' Roll, 1 1 Ed. II., Mich., Ro. 156, Plereford — Emlyn's Hale, ib.); of Redynges, who counterfeited a seal and suffered as a traitor (Patent Roll, 6 Ed. II., part ii. m. 18) ; and of Clement Peytevin, who not having actually coun- terfeited the Great Seal, but^having transferred it from one document to another, was judged (in the opinion of lawyers, wrongfully) to be a traitor (' Coram Rege ' Roll, 2 Henry IV., Hil., Ro. 16, Midd.— Emlyn's Hale, p. 81, note). 496 APPENDIX. [chap. v. It would be out of place in this history to discuss the question whether the invention of printing should be attributed to a native of Holland Pp. 368-371. °^ to a native of Germany. Block-printing, at any rate, which MMernfng ^^^ '^^ fi"^^* s'^^P' secms to havc come from Holland. printing and The attention paid to commerce in the time of Edward IV. commerce m ^ the reign of is evident not only in the well-known commission to Caxton Edward IV. . ^ Caxton, the to negotiate a commercial treaty with Burgundy, but also in Poles, &c. ,...,_ the numerous statutes of the reign which refer to trade and manufactures. The assertion that Edward was himself a trader is made in the ' Continuation of the History of Croyland Abbey' (Fulman), p. 559. The rise of wealthy merchants had already excited the surprise of a foreigner (Poggio Bracciolini, ' Opera,' p. 69). There seems to be little doubt that the aggrandisement of the Poles was effected by the wealth gained in mercantile transactions. The father of Michael de la Pole was named William ('Rot. Pari.,' 5 Ric. II., No. 3 ; vol. iii. p. 127). A William de la Pole is distinctly mentioned as a merchant in ' Rot. Pari.,' vol. ii. p. 457, and a William de la Pole, who was evidently a person of some influence, at pp. ri4, 118, 121, 154, all of which passages are consistent with the supposition that there were not two persons of the same name living at the same time, but that there was only one William de la Pole, at once land-holder and merchant. William, however, though probably in one sense the founder of the family, himself inherited some lands, as shown by ' Rot. Pari.,' vol. i. p. 356 ; but he had the wisdom to disregard the prejudices of his class. The ordinary contempt of the nobles for city life, appearing in many forms, is mentioned by Bracciolini, who was in Eng- land when Cardinal Beaufort was Bishop of Winchester. (' Opera,' p. 69). The sale of cloth good at the end but faulty in the middle called forth the Statutes 13 Rich. II., St. i. c. 11 ; 4 Edward IV., c. i ; 8 Pp. 371-372- Edward IV., c. i, and various others. It was the object of fho^ngthe S Henry IV., c. 13, to prevent the common trick of selling tu"d'in''the" vessels and ornaments of copper or latten as gold or silver. 15th century, prauds by means of casks of deficient capacity are mentioned in 2 Henry VI., c. 11 ; frauds by means of barrels offish, in 22 Ed. IV., c. 2. The discredit of English woollen exports in foreign countries through deceptions in weight or quality appears from 8 Henry VI., cc. 22 and 23 ; from 20 Henry VI., c. 10 ; from 4 Ed. IV., c. r, and from subsequent statutes. The tricks of smugglers are mentioned in 4 Ed. IV., cc. 2-4, and in r2 Ed. IV., c. 3. There are provisions against tampering with the coinage in 3 Henry V., Stat. 2, cc. 6, 7, and a provision that gold coin is to be taken by weight only, in 9 Henry V., Stat. i. c. II. p 3-6 It is hardly necessary to cite passages from the later Se'and" '°'^" ^lassics in order to show how great an appreciation the cQuniryiife. civiUsed Romans had of town life, how they regarded the CHAP. V.J REFERENCES AND NOTES. 497 country-house as a place of relaxation, and made even the country house as much like a town as possible in its extent and in its luxurious appliances. .Their contempt for the man who had never lived in a town could not be better expressed than in the famous words in which Horace refers to an old fable : — ' Rusticus expectat dum defluat amnis.' This is a curious contrast to the remark of the Italian that the English gentleman of the fifteenth century thought town life beneath his dignity. It will hardly be supposed that the history of every art can be given in these pages to justify the statement in the text that we owe almost every art directly or indirectly to towns. The Church, no doubt, did much to hand down various arts, and Roger Bacon is a familiar instance, if not of a monkish inventor, at least of a monk who took interest in inventions {See ' Works ' of Roger Bacon, edited by Mr. J. S. Brewer for the M.R. Series). As many men were living in monasteries with the means of study at hand, it would be strange if they had not con- tributed something to the knowledge of mankind. But as a matter of fact they contributed little that was new ; their intellects worked in a deep groove, and they were, upon principle, opposed to innovations. We owe them many thanks for having preserved to us a few fragments of Roman literature and Roman art, which Rome had borrowed in part from Greece, and for not having frowned upon Caxton ; but as a class they had no wish that mankind should become more enlightened. For the text of a great number of the Ordinances of the Craft- Guilds, see Toulmin Smith's 'English Gilds.' They seem to bear out the opinion expressed by Herr Brentano, in his Introduction to p^ g. g^ the volume, that each craftsman, though a worker with References ' ? o concerning his own' hands, had a little stock in trade. The greatest trade-guiw.s ' ^ the relations of light upon that period of transition, during which the capital and ^ wealthier craftsman was becoming a capitalist, and the poorer progress of -r.T*i-r-» J commerce in a mere workmg-man, is afiforded by the ' Political JPoems and the 15th cen- Songs' published in the M.R. Series by Mr. Wright. In ""''' vol. ii. pp. 157-205, will be found the 'Libel of English Policy,' and at pp. 282-287 another poem on ' England's Commercial Policy.' In these two documents appear the complaints of the workmen who were still partly retail-dealers, and who sighed for a golden age, which they believed to have existed in the past, when each man received his wage in coin. (The Statute 4 Edward IV., c. i., provides that workmen shall be paid in money and not in goods). Many other curious details are also given in the Songs. A safe-conduct granted in 1452 to some foreign miners brought into England, shows, as well as the Poems, the VOL. I. K K 498 APPENDIX. [chap. v. attention which was now being given to metal-work. See Rymer, vd. xi. p. 317, from the French Roll, 31 Henry VI., m. 13. An instance of the export of ship's guns occurs as early as 1411. Rymer, viii., 694, from the French Roll, 12 Henry IV., m. 5. In 1463 Parhament prohibited the importation of a great number of manufactures, which the artificers asserted could be iriade better in Eng- land than elsewhere (Stat. 3 Edward IV., c. 4). The Ordinances of many religious or social guilds are, like those of craft -guilds, printed in Toulmin Smith's ' English Gilds.' Their most striking features are well put together in the Introduction. RecoKiscon- The Statement that these guilds retained full vitality after sodaTor'reli- 1 388 (the date of the return of the Ordinances to Parliament), gious guilds, is founded on the best authority— the Public Records. Li- cences to reconstitute a guild, and for the guild to acquire land, are common enough. As instances may be mentioned the licences for the two guilds in the Parish Church of Houghton, for which see Roll No. 2 of Bishop Booth (Durham Cursitor's, No. 49), mem. 13, temp. Edward IV. It is unnecessary to trace through its various stages a doctrine so well known to every lawyer as that of ' Uses.' The Statute Pp. 384-385. . •'■'.. Statutes reia- which chccked the abuse of this legal fiction by the clergy is tingto'Uses.' .„. t, , ,• , ■•,-,■• 15 Ric. II., c. 5 ; that which gave it vitality as a legitimate aid to conveyancing is 27 Henry VIII., c. 10. The best contemporary guide to the ordinary course of legal pro- ceedings about the time of the Wars of the Roses, is Fortescue, ' De Pp. 386-388. Laudibus Legum Anglias.' The civil trial is described in cc. fonclmSg 25 ^^'^ ^^' ^^^ criminal in c. 27 j the punishment following diS' X^-'eine ^° attaint of perjured jurors in c. 26. The Statute 15 &"'^in't'h"^'' Henry VI., c. 5, relates to perjury, and in its preamble the isth century, prevalence of the offence is lamented. There appears to have been less restraint upon the practice of approving than in earlier times. The Stat. 5 Henry IV., c. 2, recites that 'divers notorious rogues, for the safeguard of their lives, had become provers, to the intent, in the mean time, by brocage and great gifts, to pursue and have their pardons, and then, after their deliverance, had become more notorious felons than before.' That torture was sometimes used to extort coiifessions is, as already stated, clear from the passage in the Pipe Roll, 34 Henry II., Ro. 10, and the Council Books of later date. It may also be inferred, perhaps, that the practice was not very common, from c. 2 2 of Fortescue's ' Laudes,' in which indeed, to his honour be it said, he most feelingly denounces the practice ; but although he reprobates torture as it existed in France, he does not expressly deny that it was used in England, as foreign and English authors have some- times assumed, The form into which the 'peine forte et dure' had CHAP, v.] REFERENCES AND NOTES. 499 developed in the fifteenth century will be found in the Year Book, 8 Henry IV., i, 2. Trials of a later date, of which some minute details have been preserved, show that it was the custom of the judge to examine the prisoner in a manner by no means gentle. That, however, is a matter for future comment. The passage concerning English robbers and their 'hearts,' is from Fortescue on 'Monarchy,' pp. 99-100. The description by John Hill, the royal armourer, of the p^, 335.3 ^ formalities observed in a ' Battle of Treason,' has been pre- Treatiseofthe , ' ■»■ Isattle of served among the Hale MSS., vol. xii. (xi.) Treason. In the Hale MSS. also was found the reference to an instrument entitled ' De certis requestis Karolo Adversario Francie ex parte Regis Anglie ofiferendis.' It occurs on the French Roll 7 Richard pp. ^^^^^^^^ II., memb. 24, and is a very remarkable document. Richard SerJof addresses it to his uncle, John Duke of Lancaster, whom he Ri<:i!?"'f^ ^ ^ women in the agamst her. . . . And these two suits, wherefore she 'sth century, was condemned, seemeth very honest. Her mishap was, that being friendly to many, she found not all in like sort affected towards her ' (SirM. Hale's MS., vol. vii.). The restitution of her lands after her marriage to William Windsor, appears by the Patent Roll, 3 Ric. II., part 3, m. 5, the reference to which was found in the Petyt MSS. The description of the chastisement inflicted on a young lady by her mother is from the 'Paston Letters ' (Ed. Fenn), vol. iii., pp. 206-208. This curious collection of letters generally bears out the statement in the text, that the family life was hardly one of mutual confidence and affection. Statute 33 Henry VI., c. 5, recites the complaint of the London silk-women, and provides a remedy. The assault committed by Ralph Garneys in the presence of the Judges in Westminster Hall is thus described in the Inquisition :— ' Ad quod Damnum,' 16 Henry VI., No. 10. (Spelling as in the original, but contractions extended.) ' Cum Radulfus Garneys, per nomen Radulfi Garneys de Gelston in comitatu Norfolk Armigeri, nuper coram nobis indictatus extiterit de eo quod ipse, sexto die Februarii ultimo preterito inter horam decimam et undecimam ante horam nonam ejusdem diei, Recorc^o'n apud Westmonasterium in Magna Aula Placitorum infra inWestminster Palacium nostrum ibidem, apertis tunc et ibidem tam Curia Cancellarie nostre quam Curia nostra Coram Nobis ac Curia nostra de Communi Banco, in presencia tam Justiciariorum nostrorum ad Placita Coram Nobis tenenda assignatorum quam Justiciariorum nostrorum de Banco predicto tunc ibidem sedencium, in Edmundum Fitz-William Deputatum Johannis Ducis Norfolk Marescalli Marescalcie nostre Coram Nobis adtunc et ibidem quandam indenturam officium ejusdem Edmundi Marescalcie predicte tangentem inspicientem tunc ibidem afifraiam et insultum fecit, ac ipsum Edmundum cum pugillo ipsius Radulfi manus 502 Appendix. [chap. v. sue dextere super faciem ejusdem Edmundi tunc ibidem percussit, per quod tarn Justiciarii et alii ministri nostri Curiarum predictarum quam DominiSpirituales et Temporales ex Consilio et circa Consilium nostrum tunc ibidem existentes et attendentes tunc et ibidem tam graviter pertur- bati extiterunt quod iidem Justiciarii et alii ministri Curiarum predic- tarum circa Placita nostra ac diversorum ligeorum nostrorum ac Domini dicti Spirituales et Temporales circa consilium nostrum tunc ibidem attendere non potuerunt '■ — a Commission issues to enquire what lauds were held by Gameys. A reference to this curious document, which illustrates the customs observed at Westminster, as well as Garneys' crime, was found in the Hale Collection. The assault with a great armed company, in the king's presence in _ the Star Chamber, is the subject of the ' Rotuli Parliamen- Pp. 413-415. ' .' Records con- torum,' 28 Hcnry VI., No. 56 (printed vol. v., pp. 200-1). forces in law- The instance in which four hundred armed men rode to courts, mutila- . ^ ..,.,._ it» tion, misdeeds Walsuigham to prevent justice bemg done is from the Paston of soldiers, &c. , ■ . . r. Letters, vol. 111.^ p. 118. Statute 5 Henry IV., c. 5, is that which relates to the cutting out of tongues, and the putting out of eyes. Statute 33 H. VI., c. i, deals with the habit, which servants had, of scrambling for their master's goods as soon as he was dead. The complaints of the misdeeds of English soldiers bound for France appear on the 'Rotuli Parliamentorum,' 20 Hen. VI., No. 34 (printed vol. v. p. 61). The account of similar practices under Edward IV., and of the King On circuit, is from the ' Continuation of the History of Croyland Abbey' (Fulman, p. 559). A contemporary account of some of Jack Cade's doings is given in one of the Paston Letters, vol. i., pp. 54-62. It there appears that Sir p ^ _ ^ John Fastolf was suspected of having 'minished all the References garrisous of Normaiidy and Manns, and Mavn, the which concerning the ^ j ^ Wars Df the was the causc of the losing of all the king's title and right of an heritance that he had beyond sea.' The thoughts of a knight's wife for the defence of her home are expressed in vol. iii., pp. 314-316, her thoughts for bedchamber and malthouse in vol. iii., p. 324, the difficulty of communication in vol. ii., p. 72 (where the opportunity of sending a letter at the time of Bartholomew fair is mentioned as one too good to be lost). The thieves on the roads about London, and the impossibility of sending money, are described in vol. iii., p. 254, the unhealthy condition of the towns in vol. ii., pp. 74-76, and riots, routs, affrays, and forcible entries, in very many letters. The description given in Parliament of the state of England during CHAP, v.] REFERENCES AND NOTES. 503 the Wars of the Roses is from the ' Rotuli Parliamentorum,' i Richard III. , No. I (Printed vol. vi., p. 238). Preambles of statutes and statements made in Parliament have fre- quently been used in illustration of the condition of the country, and they are very valuable where they describe the condition as existing when a statute was made, or immediately before, but they vaiulofstite- are of no value where they describe the condition as existing ^reambksof in ages before the describers lived. They then become """'^'' second-hand authorities, giving merely the historical opinions of peti- tioners who wished to prove a case, but who were not recording the events of their own time. It would not be difficult to prove on such evidence that the country had progressively lost population, wealth, and good morals, for nothing more frequently occurs in the preamble of a statute than a statement that the evil to be remedied is of quite recent growth, and entirely unknown to previous generations. The statement, in some statutes of the Tudor period, that certain towns had become less populous than in earlier times, is in all probability incorrect, even as applied to the particular towns mentioned, and gives a wholly false idea of the development of commerce and town life as a whole. The subject, however, is one which may be more appropriately touched in another volume, though it seemed necessary to show in this that a pos- sible objection had not been overlooked. A charge of peculation against a Chancellor was, as has been inci- dentally mentioned in the cases of the Poles, of very common occur- rence. Corruption of Judges is indicated in the Statute 8 ^ ^ Richard II., c. 4, but still more by the widespread main- Evidence of ' ^' . ■' ^. . the state of tenance and intimidation ; corruption of the ' Pincerna ' in society to- wards the end the Patent Roll 8 Richard II., part 2, m. 30, a. ; and of various of the isth century. revenue officers, in the ' Rotuli Parliamentorum,' 1 1 Henry IV., No. 25 (printed vol. iii. p. 625). Bribery of sheriffs is the subject of 18 Henry VI., c. 14 ; and in the reign of Edward IV. there was a com- mission to enquire concerning neglect of duty and partiality on the part of sheriffs, throughout the whole realm (Patent Roll, 13 Edward IV., part ii., m. 8 d.). The outcry against Empson and Dudley in the reign of Henry VII. was no more than an expression of dissatisfaction which had continued for centuries. The mention of bloodshed by the dagger, drawn in haste, is very common in the criminal proceedings of the period, and was not then considered by any means ' un-English.' The exposure of traitors' heads upon London Bridge was too frequent to need special references in proof of it. There is, however, a curious collection in illustration of the subject among the Petyt MSS. ('The- atmm Criminalium,' vol. iv.). The influence of royal blood is shown by writs directed to sheriffs in favour of the widows of some traitors, 504 APPENDIX. [CHAP. V. who are permitted to receive their husbands' heads and to bury them. Such writs are enrolled on the Close Roll, i Henry IV., part i. m. 9 (concerning the head of the Earl of Kent), and m. 12 (concerning the head of the Earl of Huntingdon). 5.?^ also the same roll, m. 19 (con- cerning the head of Thomas le Despenser, sent from Bristol to London), and the Close Roll, 5 Henry IV., part i. mm. r, 25, 28, for other instances, including one of a head set on the pillory at Cambridge (m. i). The Close Roll of Henry IV., m. 10, illustrates the manner in which heads and quarters were distributed, and afterwards, sometimes, collected. The practice of quartering traitors of noble biith died out about the end of the fifteenth century, though the sentence was passed upon them as before, and persons of inferior birth suffered the full horrors of the Judgment. SOS INDEX The References are, as far as possible, in accordance with the best linown descriptions of the various matters, and, therefore, not always consistent, e.g. ' Patent Rolls' and ' Rotuli Curias Regis,' 'John of Salisbury ' and ' Radulfus de Diceto.' ABB ABBOTS, offences charged against, 198-201, 247, 27s, 466, 475, 479 Abduction of heiresses, 261, 477 Abingdon, Abbot of, 243 ; Fair at, in- terrupted, ib., 474 Abjuration of the realm, by persons ac- quitted at the Ordeal, 131. By sus- pected persons unable to find sureties, 219. By persons who had taken sanc- tuary, 232-233, 472 Abraham, Isaac, and Jacob, virtue attri- buted to the names of, 37, 432 Accessary. See Principal . / 7. Accusations, merciful provisions with respect to, in the Roman Law, 17, 427. Fellow-swearers in, according to An- cient Laws in England, 56, 438. Absurd and false, made against the Jews, 195-196, 464. False, made by persons convicted before Justices of Trailbaston, 222, 470. Of Treason from corrupt motives, 228-229, 471. False, of importing bad coin, 267-268. By approvers, how regarded, 286-289, 478. By appeal of injured persons, neither popular nor effectual, 289-293, 481. False, against Ralph Ferriers, 400, 499. See Appeals, Indictment Acton, Roger, Indicted for Treason, 346. Sentence on, 351. Aims of, ib., 490- 493 Admirals, Commission to inquire into the conduct of, 229* 471. Want of respect for, 234, 472 Adultery, of a slave with a free-woman, a capital offence in the case of the woman, and .punished by burning in the case of the slave, 14-1S, 426 Advowsons, disputed claim to, settled by duel, 205, 467 Alfred. See Alfred Aids, an excrescence upon the feudal sys- tem, 448 Affrays, common in Law-Courts in the 14th century, 256-257, 477 ; and in the reign of Henry VI., 412, 501-502 Ale, punishment for the brewers of bad, 173 Alfred, -King, his superiority to his con- temporaries, 85. His influence powerless to change the tone of society, ib. Ferocious spirit of the laws bearing his name, 86, 445. Popular exaggeration of the good effected by him, 107. Note on the spelling of his name, 434. Re- ferences to the laws of, 437, 439, 445 Alien Priories, petitions against, in Par- liament, 306, 484. General dissatis- faction with, 342. Taken into the King's hand, 343, 489 Allodial tenure, burdens of, 75, 441. Privileges incident to, 78, 441-442. Enjoyed by the burgesses of Canter- bury, 174-175, 461-462 Alms-giving, a substitute for the penance of fasting, 47, 437. The effects of this commutation, 48. To lepers in the 14th century, 239, 473. Contrasted with charity, ib. Amalfi, alleged discovery of Justinian's 'Pandects' at, 133 ' Ancient Laws and Institutes of Eng- land ' (including the ' Mohumenta Ec- clesiastica'), referred to, 428, 433, 434, 435. 436, 437. 438. 439. 44°, 44i. 442, 443, 444, 445, 447, 449, 450 • Ancient Laws and Institutes of Ireland ' (Senchus Mor), referred to, 436 ' Ancient Laws and Institutes of Wales,' referred to, 436 ' Anglia Judaica,' documents in the, re- ferred to, 463, 464, 465 'Anglo-Saxon Chronicle,' the, referred to, 440, 447 Anicetus, Pope, 433 So6 INDEX. ANN Annalists, method of, rejected, 404 Antonine, ' Itinerary ' of, 24, 429 Apostate monies, warrants to arrest, 308, 484. Early indications of LoUardisra in, 310, 329 Appeal, Court of, before the Conquest, 84,444. To Rome a jright asserted by Becket, 116, 449 Appeals (accusations by an individual), difficulty of conviction in, 208-210. Partiality of Sheriffs shown by tam- pering with writs and packing juries in, 276-277, 278-279, 479. By ap- provers, 286-289, 481- A substitute for the ancient blood -feud, 289-290. Why almost useless as an instrument of justice, 290. Difficulties of accusers in, with instance, 289-292, 481. How far remedies for private viTongs, 289- 290 Appearance of some criminals described, 2, 425 Apprentices, the London, join Wat Tyler and afterwards behead their masters, 332, 335. 487-488 Appropriation, the revenues of parish churches acquired for religious houses by, 340-341, 488-489. Discontent excited by, 341. Attempt to remedy the evils of 343, 489 Approvers, evidence of, rejected accord- ing to Roman Law, 1 7, 427. Hatred of, in the Middle Ages, 286-287, 481. Prisoners forced to become, by duress or torture in gaol, 287-288, 481. Great number of deaths of, in prison, 288, 481. Conduct of, and refusal of the battle by, after making their ac- cusations, 28S-289, 481. Advantages enjoyed by clerks as, 303, 483 Aquensis, Albertus, i-eferred to, 458 ' Arcliaeologia,' references to the, 429, 430. 476 Archbishop of Canterbury. &f Canter- bury Archbishop of York. See York Archdeacon, description of the Court of Henry H., by an, 142-144,456. De- scription of a Bishop by an, 147-148, 456. Fradulent proceedings in the Court of an, 281-282, 480 .Archers, frauds by an arrayer of, 265, 477 Architecture, how far known to the pri- mitive Teuton, 73, 441. Taste in, due to town-life, 373 Arena, Roman punishments in the, 12, 20, 426, 428 Arkwright, beginnings and effects of the inventions of^ 418 Arms, assise of, 180, 219, 469 Army, composition of the English, under Edward H., l8o, 462-463 BAL Array, 180 Arson, punishment for, according to the Assise of Northampton, 131, 451 Art, works of, pride of each Roman city in its own, 25, 429. Their abundance in villas in Britain, 27, 429-430. Multiplied by the growth of towns, 373 Aryan Languages, superstitions, and the fine for homicide not peculiar to the speakers of, 42, 434-436. Tenure of land in common not peculiar to the speakers of, 76, 441-442 Aspect of the Country (England), jn the 14th century, 241-242, 473 Assassins, England once reputed a land of, 62-63, 440. In England after the Norman Conquest, 96, 98, 447 Assaults, in Law-Courts, 256-257, 412, 477. 501-502 Asser, remarks upon the life of Alfred attributed to, 444-445 Assise, of Clarendon, 119-120, 122, 130- 133, 450. - Of Northampton, 122, 130- 133. 4SI- The Grand, and its rela- tion to other proceedings, 124-128, 451. Of Arms, 180, 219, 469. Com- mission of, 221. Justices of, ib., 469. Attainder, of Roger Mortimer reversed, 227, 471. Regarded as a device for acquiring lands, 229, 471, 488. After death, not imcommon, 406, 500. Bill of, ib. Followed sentence of deathinall cases of Treason or Felony, 500 Attaint, meaning of an, 386. Effects of conviction upon, ib., 498 Augustine, superstitions in England be- fore and after the mission of, 32-41, 431-435 Avegay, Jewess and usurer, 190-191, 463, and frontispiece Aylesbury, manufacture of false coin at, 266, 478. Forgeries at, 269, 478 Azincour, battle of, 394 BACON, Lord, previous history to be considered in estimating the cha- racter of, 283. Opinion of, upon the burning of heretics, 489 Badby, John, writ for the burning of, 490 Bail, reciprocal, before the Conquest, 57-64, 438-440 Bakers, punishment of fraudulent, in London in the fourteenth century, 237, 473. Women employed as, 255-256, 411, 476, 501 Ball, John, doctrines of, 329, 332, 487. Released from prison by Wat Tyler's men, 332. Chosen to be primate by the rebels, 334, 487-488 INDEX. 507 BAR BOR Barons, the, jealously guarded their own jurisdictions, 217-218, 469. Benefits from the exhaustion of, in the Wars of the Roses, 419 Bath, called a Chester by the Teutonic invaders, 68, 440. Population of under Edward II., i8i, 462-463 Battle, the wager of, or trial by, intro- duced by the Normans, loo-ioi, 448. Glanville's description of, 124-125,451. Exemption from desired and gained by the townsmen, 175, 448. Claim to an advowson referred to, and description of the scene, 205, 467. Begins to be supplanted by the petty jury in crimi- nal trials, 206-208, 467-468. Dreaded by approvers, 289, 481. The proceed- ings of, in charges of Treason, 389-392, 499. Relation of to war, public and private, 392-394 Baxter, gradual change in the meaning of the word, 255, 476 ; . . . Baynard's Castle, curious jurisdiction at- tached to, 83, 443 Beaufort, Cardinal, position of under Henry VI., 356. A Duchess of Glou- cester tried for witchcraft before, 356- 357. 494 Becket, Thomas a, his quarrel with Henry II., 115-116. Murder of, 117- 118,449-450. Pilgrimages to the tomb of, 150, 456 Bede, first appearance of England in the historical works of, 46, 70, 437, 440. Referred to also at pp. 432, 445 Bedels, corruption of, at the end of the twelfth century, 143-144, 456 Bedford, population of, under Edward II., 181, 462-463. Letters and seals counterfeited in the neighbourhood of, 269, 478 Bedford, Jacquette, Duchess of, mother of Elizabeth the wife of Edward IV., 358. Precautions taken by against a charge of witchcraft, 359. Suspicion of witchcraft against, mentioned in Parliament, 360, 494 Beggars, on behalf of hospitals, how punished for fraud in London in the fourteenth century, 237, 473. Provi- sions against in the Statutes of Labour- ers and of 1388, 341-342, 488 Beheading. ' See Decapitation Benedictus Abbas, referred to, 452, 457, 4S8> 469 X. c . Benefit of Clergy, growth of, 104-105, 116, 449. Unsuccessfidly claimed by ii rector guilty of maihem, and why, 212, 468. The effects of, considered in relation to popular feeling, 297- 298 Proceedings upon the claim of, 298-299, 482-483. To what class allowed, 300-301, 482-483. Extent of the advantages secured by, 299- 300, 301-302, 482-483. Jealousy ex- cited by, shown in verdicts of juries, &c., 302-303, 483. State of edu- cation inferred from, 314, 485 Beowulf; the poem of, 433 Beverley, charter to, and recognition of the guild and hanse-house at, 174, 460. Population of, under Edward II., iSi, 462-463 Bible the, translation of, by Wycliffe, 338 Bigamy, meaning of, in the clerical sense, 300. Benefit of Clergy lost by, ib. The Statute of, 483 Bills, forgery of Exchequer, in the reign of Edward HI,, 273-274, 479 Bishops, legal functions of the, before the Conquest, 84, 443-444. IDescription Of one by an Archdeacon at the end of the twelfth century, 147-148, 456. Part taken by in political affairs, and consequent scandals in the fourteenth century, &c., 338-340,488. Proposal to abolish, in the time of Oldcastle, 351, 491. To seek out and imprison sorcerers, 353-354, 493 Black Book, the, of the Exchequer, 453- 454 Black Death, the, advantage of studying the period immediately preceding, 310, 316-319. Approach of the, from the East to England, 319. Ravages of the, 320. Immediate after-effects of the, 321, 485 Blackheath, muster of rebels under Wat Tyler at, 332, 487, 488 Blake, Walter, indictment of, for treason, 346,490-493. Sentence on, 351. Aims of, ib. 490-493 Blois, Peter of, character of, 147-148, 456. Description of a Bishop by, ib. Blood-feud, the, among the ancient Ger- mans and otlier barbarous tribes, 41, 436. In England, 57, 438-439. Satis- faction of, 57-62, 438-439. fhe Ap- peal of Murder a substitute for, 289- 290, 481 Boc-land, 81 Bodmin, relics stolen from the Abbey of, 150-151, 456 Bollington, offences charged against the Prior of, 248, 475 Bonfires, of sham wares, in London, in the fourteenth century, 238, 473 Bonds, forgery of, in the reign of Edward HI., 273-274, 479 Borough ('burh,' 'byrig'), history of the meaning of the word, 70-71. Com- pared with the Roman 'castra,' or chaster, ib. Relation of the borough to the shire, 71-73, 441. See Tovras So8 INDEX. BOS CAM Boston, population of, under Edward II., i8i, 462-463 Brabazons, or Routiers ; brigands, here- tics, and mercenary soldiers so called, 156-157, 457 Bracciolini, Poggio, on the habits of the English, 496 Bracton, evidence of, concerning the dis- tinction between English and Normans in England under Henry III., 138, 455. Definition of murder, and Pre- sentment of Englishry according to, 455. Evidence of concerning the growth of the second or petty jury, 467-468 Branding on the forehead, forbidden by Constantine, 20, 428. Practised ac- cording to ancient laws in England, 50, 437. Applied to the Paterine heretics, 155, 457 Brewers, male and female, how punished in Chester for brewing bad ale, 173. Women employed as, 255-256, 476 Brewster, gradual change in the meaning of the word, 255> 476 Bribery, of Judges and other officials at the end of the twelfth century, 143-144, 456. In the reign of Edward III., 229-231,471. OfChief Justice Thorpe, 282, 480. Of commanders, for the suiTender of garrisons, 401-402, 500 Bridges, maintenance of, under the Em- pire, 22, 428. Maintenance of, after the Teutonic invasion, 75, 441 Brigands, bands of, described as heretics, 156-157, 457. Their offences to be enquired into under commissions of Trailbaston, or other special commis- sions, 222, 469-470. Outrages of, in the fourteenth century, 242-243, 474. Their attacks during fairs and markets, 243, 474. Bristol in the hands of, 243-244, 474. Townsmen, knights, and the clergy commit the acts of, 246- 253, 475- Produced by the ancient right of private war and doctrine of entry upon lands, ib. The travelling justices commonly obstructed by 257, 476-477' Intimidation of prose- cutors and suitors by, 257-258, 477. Not incapable of the meaner crimes, 259-260. Forgeries, and false perso- nations by, 270-272, 478-479 Bristol, population of, under Edward II. , 181, 462-463. Story of the Jew of, tortured in the reign of John, 186, 463. In the hands of brigands in the four- teenth centuiy, 243-244, 474. Outrage attributed to the Prior of, 250-251, 475 Britain, its early condition uncertain, 10, 425-426. Alleged executions by fire in, 10-12, 425-426. Roman organisa- tion in, the same as elsewhere, 22, 428-429. Full development of Roman civilisation in, 23-24, 429. Loss to, when abandoned by the Romans, 24. Roads, tovms, and works of art in, ib., 429-430. Ajoumeyin Roman, 25,429- 430. A villa in, described, 26-29, 4.'50- General sense of security in, 29-30. Pacatian Vicar or Governor of, 26, 29, 429, 431. Superstitions in, 33, 41, 431-432. Introduction of Christianity into, 35, 432-433. Whether the ear- lier occupants of, were destroyed by Teutonic invaders, a question of little importance in the history of Crime, 69 Britanny, the Justice of, 150-151 British Museum, MSB. in, referred to, 461, 467 Bruerne, law-suit between the Abbot of and the Abbot of Cirencester, and for- gery of a charter in the Abbey of, 275- 276, 479 Burdett, Thomas, sentenced for witch- craft, or necromancy construed into Treason, 361, 494 Burgage-tenure, 174, 461-462 Burgesses, guild-hall of at Dover, and guild of at Canterbury before the Nor- man Conquest, 64-65, 173-174, 440, 462. Guilds of probably existed before the Conquest, where the guilds are not mentioned, 460. See Towns Burglary, a common amusement of Lon- don merchants in the twelfth century, 141-142, 456. Parsonages most com- monly selected for, in the fourteenth century, 303, 483 Burial, fraudulent, at Lynn, 296, 482 Burning, punishment by, attributed to ancient Gauls and Britons, 10-12, 425. Practised by the Romans, 12, 14, 34, 426, 432. Atrocious form of, in an- cient laws of England, 5>) 438- O^ the entrails, a part of the punishment for Treason, and why, 226, 47°-47'- For heresy, 344-345. 489-49° Bury St. Edmund's, population of, under Edward II., 181, 462-463 CADE, Jack, accusations of treachery made by, 415. His rebellion the beginning of the Wars of the Roses, ^ 415, 502 CsEsar, referred to, 425, 436, 441 Calais, siege and capture of, by the English, 232. Bribes offered for the surrender of, 401, 499. Murder of Gloucester at, 404-405, 500 Cambridge, the king's writs and money INDEX. 509 CAN forcibly taken from the king's officers at, 251-252, 475. The Mayor of, attacked in presence of the justices, 257, 477 Canidia, the Roman witch, powers at- tributed to, 33, 431 Canon Law, privileges claimed for the clergy by the, 116. Effects of com- purgation according to the, 299-300, 482-483 Canterbury, guild of burgesses at, before the Norman Conquest, 64, 440. Pri- vate jurisdictions in, before the Con- quest, 83, 443. Lanfranc, Archbishop ofj 94) 446. Right claimed by Becket as Archbishop of, 117, 449-450. Pri- macy of the see of, disputed, 148-149, 456. Pilgrimages to, 150, 456 Popu- lation of, under Edward II., 181, 462- 463. Stephen Langton, Archbishop of, 188, 463. A close of the Arch- bishop of, broken by chaplains and others, 247-248, 475. Oath taken by the Archbishop of, 304, 484. Death of an Archbishop of, in the plague of 1349) 320, 485. Unpopularity and murder of Sudbury, Archbishop of, 331-332, 336) 487-488 Canute, King, development of the Peace- Pledge under, 60, 440. Ferocious spirit of his laws, 86, 444-445. Aims of, 87, 445. Forest laws under, 214, 468. Note on the spelling of the name of) 434 Capital, early relations of, to labour, 378-380, 497-498 Capital punishment, under the Romans, 12, 15, 16, 426, 427. The Conqueror's reason against, 100. Forms of, in the ancient laws of England, 50-51, 438. For Treason, 226, 470-471. Imitation of, in Wat Tyler's Rebel- lion, 336-337) 487-488 Carta, Magna. See Magna Carta ' Cartas Antiquse, ' the, referred to, 459,460, 461 Castles, erection of, in England imme- diately after the Conquest, and the effects, 105-106. Erection of, in Ste- phen's reign, and the effects, 112, 449 Cattle used instead of coin in the reign of the Conqueror, 1 10 Caursins, the, or Pope's money-changers, 192, 464. The 'Jewry' pledged to, 193, 464. Are troublesome creditors to many of the clergy, 198, 465 Cavendish, John, accused of ' Scandal- um ' against Michael de la Pole, the Chancellor, 399, 499 Caxton, patronised by Edward IV., 364. Printing introduced into England by, 369-370, 496 CHE Celibacy ill borne by the clergy in Eng- land before the Conquest, 93, 446 ; and immediately afterwards, 102, 448 Challenge of jurors, 206, 388, 467 Chamber, the Steward or Seneschal of the, commissioned to enquire concern- ing forgeries of Exchequer Bills, 273, 479 Champions always substituted for the parties interested, in the civil trial by battle, 205. Account of an inter- rupted battle between, in the reign of Henry III., ib., 467 Chancellor, the, fraudulent purveyance in the name of, 269-270, 478. Com- missioned to enquire concerning for- geries of Exchequer Bills, 273, 479. Accusations against Michael de la Pole, the, 399-400, 499. Charges of peculation against, frequent in the Middle Ages, 420 Chancery, Records of the Court of, carried on a pack-horse, 234-235, 473. Confirmation of a forged charter in the, 275-276, 479 Chaplains, great numbers of, accused of forcible entry and brigandage, 246- 253). 475- 'False personation of Queen Philippa's agent by a chaplain asso- ciated with brigands, 271, 478-479 Charity, want of, in the Middle Ages, and subsequent prevalence of, 153. Contrasted with alms-giving in the fourteenth century, 239. As shown by guilds of the fifteenth century, com- pared with that shown in the nine- teenth, 381-383 Charles VI., of France, challenged to single combat by Richard II., 393- 394, 499 Charles VII., of France, success of, through the Maid of Orleans, 354-355 493 Charters, to towns, 1 70-175, 459-462. Common practice of forging, in reli- gious houses, 274, 479. Example of the manner in which they were forged and made evidence in court, 274-275, 479. Of pardon ; see Pardons Chaucer, the writings of, illustrated by the Records, 306, 310, 485. Living at the time of the Black Death, 309. Quotations from, 311, 485. State of society and of the Court illustrated by, 312, 485. English spoken at Court in the time of, 312-313. Compared with the 'Plowman,' 311, 315 Cheats in gaming in the twelfth century, 145-146, 456. In gaming and trade, how punished in the fourteenth cen- tury, 237-238, 473 Chester, name given by the city of, to Si° INDEX. CHE CIV a shire, 72. See removed from, to Coventry, 99, 447. The seat of fikh at, according to Domesday, 1 73 Chester, or 'Castra,' term adopted by Teutonic invaders to designate a Roman station, 67-70, 440. Com- pared vifith the Teutonic borough ('byrig,' 'burh'), 70-71 Chichester, population of, under Edward II., 181, 462-463 Chief Justice of England, appearance of delegates from chartered towns before the, 177, 462. Acceptance of bribes confessed by William Thorpe, the, 282-283 Chiltem Hills, the right of hunting on, claimed by the citizens of London, and recognised by charter, 1 72, 459 'Chivaler;' the title of, 249. Acts by persons styled, 247-252, 261-262, 265. See Knight Chivalry, affectation of, at the time of the Third Crusade, 163. As illus- trated by Richard, Coeur-de-Lion, 167-168. As illustrated by the ordi- nances for the punishment of Crusaders, 168-169, 458. As illustrated by the deeds of ' chivalers ' in the fourteenth century, 247-252, 475. Want of respect for human life in the age of, 255, 404, 476. Dishonesty charac- teristic of the age of, 261-262, 283, 477. Want of sympathy for the fatherless and the widow in the age of, 290. The age of, seen at its best in the year before the Black Death, 317-319. Superior learning, in me- diieval opinion, inconsistent with, 353, 493. Prisoners of war regarded as articles of commerce in the age of, 355. The good points in, 389, 390, 499. Illustrated by the conduct of Richard III., 409. The position of women in the age of, 409-411, 501 Christianity, softening influence of, upon Roman Law, 19-20, 427-428. Dis- tinction between its morals and those of heathenism, 19. Effect of pagan superstitions upon, 35-41, 432-435. Introduction, of, into Britain, 35, 432- 433. Superstitions in, after Augus- tine's mission, 38-41, 433-435. Ab- sence of its' spirit in the Pre-Norman laws of England, 46. Corruption of, by commutation of penances, 47-48, 437. Argument used in favour of, by a pagan chieftain, 87, 445. Improve- ment in the condition of women effected by, 91-93. Final prevalence .of the higher conception of, 153 Chronicles, mediaeval, their defects, 5. Tone of morals in, before the Norman Conquest, 63, 440. Do not throw so much light as records upon fhe state of society, 317 ' Chronique de la Traison et Mort de Richart II.,' referred to, 500 Church, the, exorcism of demons and various superstitions sanctioned by, 39, 434-435. Policy of, in effecting conversions, 40. Corruption of, through commutation of penances, 48, 437. Influence of, in improving the con- dition of women, 91-93. Discontent in England caused by the policy of, at the time of the Conquest, 102. Attempts to constitute the Pope the feudal superior of kings, 102-103, 448-449. Claims of, and quarrel of, with' Henry II., 115-116, 449-450. - Did not support the poor in the twelfth century, 151-153, 457. Al- leged offences against, by the Jews, 194-195, 464-465. Profited by the expulsion of the Jews, 197-198, 465. Its good influence in abolishing the ordeal, 204, 467. Position of, with respect to Crime in the fourteenth century, 297-302, 482-484. Wide- spread desire for reform in, from the fourteenth century downwards, 298. Corruption of, denounced by courtiers as well as Lollards, 342, 488-489. Henry IV. and Henry V. feared the power of, 343, 489. The defence of, assigned as the reason for burning heretics by the secular power, "345, 489. See Clergy Churls, more severely punished than their superiors, 50, 437. Always in danger of reduction to slavery, 89-90, 445. Not injured by the Noiman Conquest, 103, 448. See Villeins Cinque Ports, the, not mentioned in a roll containing the names of other towns in the reign of Edward II., 1*79, 462- 463. Character of the seamen of, 233-234, 472. Yarmouth a depen- dency of the, 234 Circuits, beginning of, in the form of eyres, 108. Difference of from eyres, 135, 452-453 Cirencester, population of, under Edward II., 181, 462-463. Forgery of a charter to defraud the Abbot of, 275- 276, 479. Cities. See Towns Civilisation, the Roman, fully enjoyed in Britain, 22, 23, 429-430. Tokens of, in early England, out of harmony with the barbarity of the criminal laws, 76. Extinction of Roman, in rural England, 87. Easily destroyed, and with diffi- culty renewed, 171. Effect of the INDEX. 5" CIV COI growfh of towns with respect to, 175, 373-374> 377- Causes of its. slow development in England, 176. The savage's view of, handed down by tra- dition, 260. Does not increase fraud when it diminishes violence, 260-264. Effects of an ill example set by govern- ment in checking, 266. Has the effect of separating the criminal classes from the' industrial, 286. Anomalies in the gi"owth of, 364. Retarded by ancient custom, favoured by material progress, after the Wars of the Roses, 397. Of the fourth and of the fifteenth centuries, compared, 417. Modern, may be said to begin with the reign of Henry VII., 419 Civil Law, renewed study of the Roman, 133, 452. The study of perverted to fraudulent objects, 384, 498 Civil War. See War Clarence, George, Duke of, charged with having imputed witchcr-aft to Edward IV., 361, 494. Death of, 362. Clarendon, Assise of, 119-120, 122, 130- 133. 450 Classes distinguished by the Romans m awarding punishments, 13-14, 426. Division of under the Empire, 20-23, 428-429. Distinguished in awarding punishments according to Teutonic laws and early laws in England, 44-5 1 > 437. In the reign of Henry II., 139, 453-455. No .immediate change in the division of, effected by the Con- quest, 139. Effect of the growth of towns upon the division of, 175. Beginning of the modem grouping of, 380, 497-498 Clergy, belief of the, in witchcraft, 38- 39, 434-435. Responsibility of the, for ancient laws in England, 49, 52. Their connexion with the ordeal and compurgation, 52-55, 438. Effect of marriages among the, upon the position of women, 92. Character of the, in England, before the Conquest, 93, 446. The native, disinclined to celibacy at the time of the Conquest, 102, 448. They profit by the anarchy of Stephen's reign, 1 14. They were averse to uni- formity in legal proceedings, ib. Character of, at the end of the twelfth century, 143-144, 146-151, 456- Of the two provinces exchange blows at Westminster, 148-149, 456- Their relation to the poor before the dissolu- tion of monasteries, ISI-I53> 457- Their hostility to the Jews, 187-189, 463. Their debts to the Jews, 189-190, 46^ Their reluctance to repair the roads, 240-242, 473. Acts resembling brigandage committed by the, 247-252, 475. Want of respect for the, in the fourteenth century, 297. Jealousy ex- cited by the privileges of the, shown in verdicts, 302-303. Unpopularity and encroachments of the, 303-304, 483. Opposition by, to execution of legal judgments, 305, 484. Misapplication of revenues and evasion of duties by, 305-306, 484. Numbers of, accused ofhomidde, etc., 307, 484. Disunion among the, before the Black Death, 308,484-485. Description of, in ' Piers Plowman's Vision,' and by Chavicer, 31 1-312, 485. Discontent among both secular and regular, at the time of the Black Death, 329, 487. Part taken by the, in public affairs, 339-340, 488. Dissatisfaction of secular, with Appro- priations, 341, 488. Agitation against, associated with political discontent, 340-342, 351-352, 488-489. The children of the rich kidnapped by the, 342, 489. Alliance of, with the higher classes against heretics, 342-343. Not alone responsible for the death of Old- castle, 350. Improvement in the character of, since the fifteenth cen- tury, ib. Study among the laity dis- couraged by the, 352, 493. See Benefit of Clergy, Christianity, Church Clerk, the Chief, of the Court of King's Bench accused of taking bribes, and threatened, 279-280, 479-480 Clerkenwell, destruction of the Priory at, in Wat Tyler's rebellion, 334, 487-488 Clerks, defiinition of, 300-301, 482-483. Clipping. See Coin Close Rolls, referred to, 463, 464, 465, 469, 470, 471, 472, 473, 475, 477, 478, 479, 481, 484, 487, 490, 493, 504 Cloth, frauds in the manufacture or sale of, 371-372, 496 Cnut. See Canute. Cockayne's ' Leechdoms,' referred to, 433, 435. 437 ' Codex Diplomaticus, referred to, 440, 442, 444, 479 ' Codex Theodosianus,' see Theodosian Code Coin, the makers of false, burnt by the Romans, 14, 426. Great quantities of Roman, found in England, 24. Un- known to the primitive Teuton, 73, 74, 441. Early manufacture of, in Eng- land, after the Teutonic invasion, 74. Live stock as a substitute for, at the time of the Conquest, no, 441, 449. Scarcity of, ib. Makers of base, how punished by Henry L, and how pre- viously, III, 449. Made at private mints in the reign of Stephen, in- 512 INDEX. COK COR 112, 449. Makers of base, how pun- ished according to Assises of Clarendon and Northampton, '131, 450. Clipping and counterfeiting of, commonly attri- buted to the Jews, 186, 191, 464-465. Execution of 280 Jews, in London, for clipping or counterfeiting, 195-196, 465. Exportation of English, for- bidden, 265, 478. Importation of base, by merchants, 232, 265-266, 478. Debased by authority, 266, 478. Manufacturers of false, in England, 266-267, 478. False charges made by examiners of the, 267-268, 478. Frauds at the authorised mints with respect to, 268, 478. State of the, in ' the fifteenth century, 372, 496 Coke upon Littleton, Wager of I^aw in, 450 Colchester, privileges allowed to the bur- gesses of, by charter, 172, 459 ' Collegia,' Roman, 23. Existence of, in Britain, ib., 429 Collusion of Collectors of Customs with fraudulent merchants, 265, 478. Of Chancery Clerks with monkish forgers, 275 ' Colonus,' compared with the villein re- gardant, 21, 428 Combat, trial by. See Battle. Commerce, growth of, under the Roman Empire, 23, 429. Importance of, in the history of Crime, 66. State of English, in the twelfth and thirteenth centuries, 178-179, 462. Effects of, upon the distribution of the population, 180, 182, 462-463. Best knowledge of, in the Middle Ages, possessed by the Jews and Italians, 185 et seq. Influ- ence of, in assisting the law-givers, 217. Infected by fraud at its birth, 262-263, 371-372. Influence of, upon the invention of printing, 369-370, 494-496. Opposed to private war, 370 Commissions of Nisi Prius or Assise, Gaol Delivery, Enquiry, and Oyer and Terminer, 221,469, Of Trailbaston, and other Special, 221-223, 469-470. Of the Peace, 222-223, 47°- To en- quire into the conduct of Justices and all ofScers, lay and ecclesiastical, under Edward III., 229, 471, Of enquiry, stayed upon restitution of stolen goods, 245, 474. Details taken from special, 242-249, 474-475 Common, land held in, or subject to common rights. See Land. Common Law, origin and growth of the, 7 Common Pleas, the Court of, a branch of the King's Court, 221 Commons, the, protests of, against eccle- siastical abuses, 343, 489. See Parlia- ment Commutation. See Penance Compurgation, described, 55-56, 438. Its ill effects, 52, 55-56. Its relation to Trial by Jury, 56, 120-124, 438, 450-451. Its relation to the early police-system and to the guilds, 57, 61- 64, 438-439, 440. Connected with Benefit of Clergy, 105, 116. Impor- tance of the Conqueror^s Laws with respect to, 121-122, 450. Becomes knovrai, in its relation to laymen, as the Wager of Law, 123-124, 209, 450- 451. How far abolished by the Assise of Clarendon, 131. Regarded as a privilege by the towns, 140, 1 72, 175, 459. Advantage of, to persons^ allowed benefit of Clergy, 299-300,* 482-483 Confederacies, 474. See Brigands, Guilds, Maintenance Confession, a criminal's required by Pvoman Law before sentence of death could be passed on him, unless all the witnesses were unanimous against him, 17. 427 Conqueror, WilHam the. &« William Conquest, the Norman. See Norman Conquest Conservation of the Peace, provisions for the, 218-223, 469 Conspiracy, 499. See Brigands, Confede- racies, Guilds, Liveries, Maintenance, Partisanship, Retainers Constantine the Great, the Empefor, his laws in favour of the Provincials, 18, 427. Change of tone in the Roman Law after his accession, 19. Branding on the forehead abolished by him, 20, 428. Correction of slaves limited by him, ib. His horror of atrocities prac- tised by barbarians, ib. Constitution, the history of the, contras- ted with history of the people, 170- 171. Principles of the, not fixed in early times, 226-227, 471- ^a? Govern- ment, Parliament Contempt of Court, 257-258, 280, 412- 414, 477, 479-480, 501-502 Controlment Rolls (King's Bench) re- ferred to, 473, 474, 475, 476, 477, 478, 479> 480, 481, 482, 483, 484, 485 Conveyances' of lands, devices to evade the laws of Mortmain and Treason in, 384-385, 498 Copyholders, ' coloni ' compared with, 21, 428. iVf Villeins ' Coram Rege' Rolls (King's Bench), referred to, 468, 470, 490, 495, 500, INDEX. 513 COR CRI Indictment of Oldcastle, Acton, and Blake, as enrolled upon the, 490-493. Corn, the export of, from England, alter- nately forbidden and permitted, 178. Difficulty of conveying from one part of England to another, 182 Cornhill, the Tun on, 236, 473 Coronation, scene at the, of Richard I. , 159-160,457-458. Massacre of Jews at the, of Richard I., 160-163, 457-45^ Coroners, first step towards the jury of the, 128. Duty of the, after sanctuary had been taken, 232, 472. Rival jurisdictions of, leading to deeds of violence at Worcester, 252-253, 475. Number of cases of felonious homicide brought to the notice of the, in 1348, 254i 475-476- Of Hampshire are re- quired, but fail, to bring the Sheriff into the Court of King's Bench, 278, 479 Coroners' Rolls, referred to, 476 Corporation. See Guilds Correction of slaves. .SV^ Slaves Corruption, general diffusion of, under Henry II., 132-133, I43-I44, 451. 456. Under Edward III., and at- tempts to check it, 229-231, 471. More prevalent in times of ignorance than in times of enlightenment, 276. Of Sheriffs in the reign of Edward III. , 277-279, 479. Of Clerks and other officers in the Court of King's Bench, 279-280, 479-480. Of Counsel in a cause, 280-281, 480. Confession of, by William Thorpe, Chief- Justice of England, 282-283, 480. General pre- valence of, in the age of chivalry, 283 Corruption of blood, escaped through Benefit of Clergy in cases of Felony, 301-302,483. Followed sentence of death in cases of Treason or Felony, 500 ' Corsnsed,' trial by the, 54, 438 Council, torture by virtue of an Order in, 16-17, 386-388, 427, 498. The King's, before and after the Conquest, 176. Ordeal abolished by decree of a La- teran, 204, 467; Action of the Great, upon charges brought against William of Wykeham, 338-340, 488. Persons accused of Witchcraft brought before the Great, 359, 494- The King's, interrupted by a brawl in Westminster Hall, 412, 501-502. See Privy Council ' Councils and Ecclesiastical Documents ' (Haddan and Stubbs), referred to, 433, 434, 435 Counsel, fees taken on both sides, and a, jury-panel forged by, 280-281, 480 Counterfeiting seals, practice of, common, VOL. I. and instances of, 269-272, 478-479. Forgery incomplete without, under Edward III., 272, 479 'Counters,' the, in the City, 236, 473 'Country,' trial by the, 206-208, 285, 467-468. See}\viy County. See Sheriff, Shire Court, morals and habits of the, at the end of the 12th century, 142-146, 456. Character of the, in the reign of Ed- ward III., and introduction of the English language at, 312-316, 485 Court-roll, extracts from a, in illustration of the Wager of Law, 450-45 1 Courts, the Colonial, under the Roman Empire, 22, 423-429. Of the Manor and of the Hundred, compared, 59, 439-440. Of the Shire or County compared with the Roman Colonial, 72. Origin of primitive, 82, 442. In boroughs, 83-84, 442-443. Rude con- stitution of, before the Conquest, 84- 85, 443-444. Of the Shires, 84, 443- 444. Court of the King and Witan before the Conquest, ib., 88. All, without means of determining matters of fact before the Conquest, 88. The King's Court after the Conquest, 107. Of Manors after the Conquest, 217- 218, 469. Of King's Bench, of Com- mon Bench, or Common Pleas, and of Exchequer branches of the King's Court, 107, 221 Scenes of violence and bloodshed common in the, 213, 256-257, 412-414, 4$8, 477, 501. Intimidation of prosecutors and suit- ors in, 257-258, 468. False writs and returns successfully exhibited in, 270, 478. Confirmation of a forged charter produced in Court, 275-276, 479. Corruption of the officers of, 279-280, 479-480. Frauds practised in Secular and Ecclesiastical, 280-282, 480. Bribery of Judges in, 282-2S3, 480. See Jurisdiction Coventry, sack of its monastery by a bishop, 98, 447. Removal of a see to, from Chester, 99, 447. Population of, under Edward II., 181, 462-463 Cranmer, sentiments handed down to, from the time of Wycliffe, 298 Crecy, false personation at the battle of, 295, 482 ' Credo,' the, used as a charm, 40, 435. Repetition of, as a substitute for the penance of fasting, 47, 437 Crime, the causes of, to be sought in history, 3. Failure of the early laws of England to repress, 60-64. Impor- tance of towns in the history of, 66. Crimes of violence checked by the peacefiil arts, and increased by the L L SI4 INDEX. CRI DOW warlike spirit, ib. Importance of the history of, in the history of religious changes, 93. Influence of a settled government in the prevention of, 94. Effect of the ancient right of private war upon, in the 14th century, 246- 253. Tendencies to commit, handed down from barbarous timies, 247. Of homicide in 1348, compared with the same at the present time, 253-255, 476. Of the meaner sort prevalent in times of violence, and practised by knights and brigands, 259-282, 477- 480. Influence of enlightenment in checking, 266. Fostered by corrupt administration of the laws, 284. Se- paration of those who live by, from those who live by honest means, how caused, 286. Connexion of, with ignorance, superstition, and disease, 319. A necessary accompaniment of re- bellion, 328. Imitative, compared with executions in Wat Tyler's rebellion, 336. Pride of a Chief Justice in the character of English, 388, 499. Long the most conspicuous part of public life, 403-404, 406-409, 488. The worst forms of, an inheritance from past ages, 421 Criminals, punishment of. See Punish- ment. Description of the appearance of some, 2, 425. Compassion for the children of, in Roman Laws, 19, 427- 428. Facilities for the escape of, in the 14th century, 292-303, 481-482 Cromwell, Sir John Oldcastle compared with, 351 Crown, Pleas of the. See Pleas Croyland Abbey, a Continuation of the History of, referred to, 496, 500, 502 Crusaders, attacks by, on the Jews in England, 162-163, 457-458. Conduct of the, on the march, &c., 164-165, 458. Treacheries of the, in the Second Crusade, 165-166, 458. . Character of the, in the Third Crusade, 167-168, 458. Savage ordinance for the punish- ment of, in the Third Crusade, 168- 169, 4SS Crusades, false picture of the, in Ro- mance, 163-164. The moral condi- tion of Europe illustrated by the first two, 164-166. Importance to Eng' land of the third, 166-168. Remote advantages of the, 168, 172, 175- 176 Cucking-stool, scolds upon the, 238, 255, 420, 473. 476 Customs, difference of local, traced to the Teutonic mode of settlement, 80 Customs, collectors of, in collusion with fraudulent merchants, 265, 478 DAGGER, the use of the, formerly common in England, 62-63, S°3 Damages. See Appeal, Homicide Danes, effect of their invasions upon punishments in England, 50. Rigorous enforcement of the law of Peace-Pledge by, 59, 63, 440. Massacre of, in Eng- land in cold blood, 62-63, 44°- Mas- sacre of, a warning not neglected by the Conqueror, 98, 447 Death, precautions against unjust sen- tence of, in the Roman Law, 17, 425 Decapitation, summary, by a Sheriff, un- der Edward I., 2 10,468. A part of the punishment for Treason, 226,470-471. By Wat Tyler's men, in imitation of public execufions, 335-336, 487-488 Decenna. See Tithing Deeds, forgery of. See Forgery Default, judgment by, fraudulently ob- tained, 270, 478 Derby, population of, under Edward II., 181, 462-463. Charter to, 462 Despensers, the Law of Treason, and the spirit of private war illustrated by the case of the, 225, 470 Devil, early superstitions, concerning the, 35-38, 432. Prescriptions for expel- ling the, 39, 435. Superior knowledge attributed to the influence of the, 353, 493. Success of the Maid of Orleans attributed to the, 355, 493 Devonshire, the under-sheriff and the sheriff's officers of, excommunicated by the Bishop of Exeter, 305, 484 ' Dialogus de Scaccario',a passage in the, not trustworthy, 137-139, 453-455 Dice, loaded, in the twelfth century, 145-146, 456. Punishment for playing with loaded, in London, in the four- teenth century, 237, 473 Diceto, Radulfus de, referred to, 456 Distraint, resistance to, and rescue after, 258-259, 477 - Dogs, lawing or expeditation of,2l5, 469 Domesday-Book, guild-hall at Dover and guild at Canterbury mentioned in, 64, 440. Private jurisdictions mentioned ■in, 83, 442-443. Its importance in the history of our laws, 106-I07, 449. Want of uniformity in, 173. Trans- scripts of, used as proof of a right to be free by villeins under Richard II., 329-330. Slaves mentioned in, 486 Dover, Guild-hall at, before the Norman Conquest, 64. Retention of its Roman name by, 68. Scene at, in the four- teenth century, 232. Character of the seamen of, 233-234. A journey from, to London in the fourteenth century, 234-235. 487 Dower,allowed to the wife of a traitor,428 INDEX. S'S DOZ ELI Dozein. See Tithing Drawing, the most important part of the punishment for Treason, 225-226, 471 Drowning, a punishment for women ac- cording to ancient laws in England, 51, 437-438- Pit for, an appurtenance of a manor, 82, 442. A privilege attached to Baynard's Castle, 83, 443 Drunkenness, among the ancient Ger- mans, 73, 441 Duel, Trial by. See Battle Dunstable, the Chronicle of, referred to, 465 Duress, in prison, forbidden in Roman laws, 17, 427. Common in England in the fourteenth century, 287-288, 481 Durham, a park of the Bishop of, broken by clergymen and others, 248, 475. A collector of the Bishop of, bound to become a villein in a certain case, in the reign of Henry VI., 331, 487. Retainer engaged by the Bishop of, in spite of statutes, 397, 499 Durham, the Rolls of the Palatinate of, referred to, 481, 487, 498, 499 Durham, Simeon of, referred to, 449 EADWEARD, Eadward, Eadwerd, iEdward, &c. See Edward Easter-Controversy, inference concerning the Christianity of Britain from, 35, 432-433 Ecclesiastical Courts, fraudulent proceed- ings in, 281-282, 480 Ecclesiastical Jurisdiction, in one sense not distinct from secular according to ancient laws in England, 52. How far separated from secular in the reign of the Conqueror, 103-105, 449. Quarrel of Becket and Henry II. con- cerning, 115-116, 449. &fi Benefit of Clergy , . ., Eddas, the, not conclusive evidence upon superstitions in Britain, 433 Education, usefulness of, as an aid to legislation, 203, 217. One mode of operation of, in diminishing crime, 266. Frauds checked by the diffusion of, 276. Effect of, in Benefit of Clergy, ' 301, 481-482. State of, at the Court, and' throughout England in the reign of Edward HI., 31Z-316, 485- Prejudice against, and ill effects of the want of, at the time of Wat Tyler's rebelhon, 333 487-488. A desire for improved, associated with charges of heresy and witchcraft, 353. 493- Increase of, with the manufacture of paper, 367. Forgei-y not increased but diminished by, 368. Of books, and by punish- ments contrasted, 420 Edward the Confessor, laws attributed to, 86-87, 444' Popular clamour for the laws of, after the Conquest, 97, 134. Privileges claimed by towns as having existed in the reign of, 172, 459. .References to the laws of,428,444 Edward I., land made hable for trade debts in his reign, 179, 462. Expul- sion of the Jews in his reign, 195-198, 465. Sketch of improvements in the Law under, and under his successors, 206-231, 468-470. Preservation of his body in wax, 240, 473 Edward II. Distribution of the popula- tion in his reign, 179- 183, 462-463. The doctrine of deposition as applied to, 227, 471. Was deposed by force rather than law or right, ib. His murder an illustration of the tone of the age, 227-228. Believed to be alive after his murder, 228, 408, 47 1 Edward III. Introduces a colony of Flemish weavers into England, 179. Sentence of mutilation in the reign of, 213, 468. Sketch of improvements in the laws under, 221-231, 469-470. The machinery for the administration of justice nominally almost the same in his reign as now, 221. His accession not according to any fixed legal prin- ciple, 227, 471. State of the roads in his reign, 240-241, 473. Description of the state of Society and the crimes in England under, before the Black Death, 232-321, 472-485 (the whole of Chapter IV. ) Tone and education at the Court of, 312-314, 485. Adop- tion of the English language at the Court of, and after effects, 314-316. Manumission of villeins by, 328, 487. - •Dealings of, with Richard Lyons, 335, 488. 'Influence of Alice Perers, the mistress of, 335, 410, 488, 501 Edward IV., accession of, and marriage of, with Elizabeth Gray, 358. Sus- pected of witchcraft and poisoning, 361, 494. Patron of Caxton, 364, 369-370, 496. Development of com- merce in the reign of, 370, 378-380, 496-498. Goes on circuit with the judges, 415, 502 Edward V., character of the age illus- trated by the murder of, 404. False personation naturally following the murder of, 408 'Elegit,' Estate by, according to the Sta- tuteof Westminster the Second, 179,462 Eleutheras, Pope, 43^-433 Elizabeth, wife of Edward IV., suspected of witchcraft, 358-360, 494 5i6 INDEX. ELY Ely, population of, under Edward II., 1 8 1, 462-463 Embezzlement, a common offence of knights and officers in the fourteenth century, 261-262, 467 Enchanters. See Witchcraft England, general view of society in, from the sixth century to the eleventh, 85-95, 444-446. Description of the inhabi- tants of, by Lanfranc, 94-95, 446. Continuity of the History of, 97. Causes of the slow development of civilisition in, 176. Distribution of the population in, under Edward II., 179-183, 462-463. General descrip- tion of, in the fourteenth century, 232-321, 472-485. Aspect of the country, and difficulty of travelling in, during the fourteenth century, 241-242, 474-475. Wool the chief export of, 241. Proportion of homicides to popu- lation of, in the tourteenth century, and at the present time, 254-255, 476. Acceptance of bribes by the Chief Justice of, 282-283, 48°' Causes of the prosperity of, 418. State of so- ciety in, at the end of the fifteenth century, 420-421, 503-504 English distinguished from French or Normans in England in the reign of Henry II., and afterwards, 137-138, 453--455. No longer distinguished from French, in England, in the reign of Edward III., 313, 485. Language adopted at Court in the reign of Edward III., 313-316, 485. Cha- racter of the, according to Chief Justice Forte.scue, 388, 499. C17 of ' We are betrayed, ' raised by the, 401-402, SCO Englishry (in the sense of native subjects under Norman rule), relations of, to the Normans, 96, 98-100, 137-139, 175. 447 Englishry, the presentment of, 138, 455. Not abolished till the reign of Edward III., ib., and 313 Enquiry, Commissions of, 221, 469- 470. Particulars extracted from, 242 et seq. , 474 et seq. Entry. Origin of the doctrine that entry upon land is necessary to possession, 81. &f Forcible Entry Eoforwic-ceaster. See York Escape of criminals, facilities for, in the fourteenth century, by gaol-breaking, difficulty of identification, collusion, false and real pardons. Benefit of Clergy, etc., 292-303, 481-483 Escheat, effect of Benefit of Clergy upon the doctrine of, 30T-302, 483 FAI Ethelbert, laws of. See Ancient Laws and Institutes of England Ethelred, laws of. See Ancient Laws and Institutes of England ' Eulogium Historiarum,' referred to, 490 Eusebius, evidence of prevailing super- stitions from the writings of, 36, 432 Evidence, of one witness insufficient in capital cases according to Roman Law, 17, 427. An approvei"'s, rejected, according to Roman Law, ib. In the modern sense unknown in Pre- Norman England, 52-57, 89, 438, In the modern sense long unknown after the Norman Conquest, 123-124, 450. First indications of a desire to compare, 127-128. How far under- stood in the reign of Henry VI., 386- 388, 498-499. &f Compurgation, Jury, Ordeal, V/itnesses Exchequer, growth of the, out of the King's Court, J07-I08, 221. Import- ance of the rolls of the, in the History of Crime, 107-109, 449. Importance of the 'Jewiy' to the, 1 58-159. Enquiry into the conduct of the Barons of the, 229, 479. Corruption at the, and forgery of its Bills, 273- 274, 479. The Great Rolls of the, see Pipe-Rolls. Madox's Histoiy of the, see Madox. See 'Jews' Rolls,' ' Pell Rolls,' Remembrancer, Treasury of Receipt, &c. Excommunication, sentence of, procured by fraud, 281-282, 480. Of under- sheriff and sheriff's officers for execu- tion of judgment, 305, 484 Execution, resistance of, 257-259, 305, 477, 484. See Punishment Exeter, history of the name of, 67. Population of, under Edward II., 462-463. Sheriff's officers excom- municated by the Bishop of, 305, 484 Exile, a punishment for homicide before the Conquest, 64, 440. See Abjuration Extortion, by justices, &c., under Hemy 11,134,143-144,456. In the reign of Edward III., 229-231, 471. See Bribery, Corruption Eye, the Witch of. See Jourdemayn, Margery Eyres, beginning of the, in England, 108, 449. Establishment of, under Henry II., 135-137, 452-453- In- tervals between the, 13S-136, 452- 453. Opposition to the, under Henry II. and succeeding kings, 135-137 F'ABYAN, chronicle of, referred to, 494, 500 Fairs, attacks by brigands at, 243, 474 INDEX. 517 FAL FRA False weights and measures, common deceptions by, in tlie twelfth century, 142, 456. Punishments for, in London in the fourteenth century, 237, 473 Falstaff, foundation for the character of, 415, 502 Fame, the Inquest of, 285, 480 Family, the ties of, their relation to punishments for homicide, 42, 57, 436, 438-439 Famine an ordinary consequence of war in Kent, 235, 473 Faimers of branches of the revenue, the Jews as, 158-159, 457. Of taxes and their misconduct, 331-332, 487-488 Fastolf, Sir John, treachery attributed to, by Jack Cade, 415, 502 Fees accepted by counsel from both parties to a suit, 280-281, 480 Felons, women, receivers of, 256, 476 Felony, forfeiture for, contrasted with some Roman laws, 19, 427-428. Maihem not a, 212, 468. Corruption of blood by, escaped through Benefit of Clergy, 301-302, 483. Standing mute upon a charge of, not equivalent to a conviction, 388, 498-499. At- tainder following sentence of death in, 500 ' Female Life in Prison,' referred to, 425 Ferriers, Lord, or Sir Ralph, false charge against, 400, 499. Commander at Calais, 401, 499. Character of English commanders according to, ib. Feud. See Blood-feud Feudal organisation, compared with social conditions under the Empire, 20-21. Attempt of the Church to profit by, 102-104, 448-449. Effects of, in England, 103. Its relation to the Forest Laws, 213-215. Laymen not all included by the, in the reign of Edward III., 323. Affection of ser- vants not secured by the, 414, 502 Fine Rolls, the, referred to, 464 Fines for homicide, among the ancient Germans and other barbarous tribes, 41-45, 436-437. Inseparable from Teutonic conquest, 44. Re-introduced into Britain by Teutonic settlers, 45. Survived the re-introduction of Chris- tianity, 46, 437. Associated with the practice of compounding for penances, 47-48, 437. By whom paid, 57-62, 438-440. After the Conquest, 98, 107-109, 447, 449- The towns be- come quit of the, 171-172.459- Abo- lition of the, and effects of the, upon the people, 289-290. Fish-ponds, abundance and value of, ni the Middle Ages, 241-242, 473 Flanders, commerce of England with, 178, 182, 462 Fleet River, 241 Flemings, introduced by Edward III. to teach the manufacture of cloth, 179, 462. In the stews of Southwark, 236, 473 'Folcland,' 78, 442. Relation of the, to the Forest Laws, 213-215, 468-469 Forcible entry upon land or house, a capital offence according to Roman Law, 15, 426. Barbarous origin of, 81. Failure of legislation to check it, ib. Common practice of, and its re- lation to brigandage and other crimes in the fourteenth century, 247-253, 475' Upon rectories and churches, 304, 484. Statute against, 394, 499. Connected with private jurisdiction, retainers, liveries, &c., 395-397, 499 ' Foreign Account Roll,' referred to, 501 Foresters, hatred of the, 144, 456 Forest Laws, the punishment of mutila- tion in the, 97. Sketch of the origin, progress, and mitigation of the, '213- 215, 468-469 Forfeiture for felony, compared with some Roman laws, 19, 427-428 Forfeiture for treason, an incentive to false ac<;usations, 228-229, 47" Forgery, of charters, &c., how punished in London in the fourteenth century, 238, 473. Prevalence of in the four- teenth century, 269-276, 478-479. Of writs and returns, 270, 478. Used as an aid to brigandage, 271-272, 478. Of pardons, 272, 479. Of Exchequer Bills on a great scale, 273-274, 479. Of charters in religious houses, 275 - 276, 479. Common, when education is little diffused, 276. By sheriffs or their officers, 276-277, 479. By Counsel, 280-281, 480. Attributed to William of Wykeham, 339, 488. Sus- picion of, attaching to the indictment of Oldcastle, 346-351, 49°-493- Dimin- ished by education, 368, 495 Fortescue, Chief Justice, value of his work on the Laws of England, 386, 468, 498. Preferred robbery to lar- ceny, 388, 499 Fortresses, corrupt surrender of, 401- 403- 415. 500- 502 Franchise. See Jurisdiction Frank-Pledge. See Peace-Pledge Fraud, of various kinds, how punished in London in the fourteenth century, 237-238, 473. Knights, brigands, and ' noble savages ' not incapable of, 259- 260, 477. Prevalence of, in the age of ' Chivalry,' 261-262, 283, 477, 480- Commerce infected by, at its birth ?It INDEX. FRE 262-263. Connexion of, with force, 263-264. Various forms of, in the fourteenth century, 264-282, 477-480. Attributed to William of Wykeham and other public men, 338-340, 488. Forms of, in the fifteenth century,37i- 372, 496 French, how long distinguished from Enghsh in England. See English, Nor- mans ' French Rolls,' referred to, 497, 499 Froissart, referred to, 487 '/'^ ALAN AS,' equivalent to 'mur- Vjr drum,' 436 Gallows, an appurtenance of a Manor, 82, 442. The New, in St. Giles's Fields, 351, 493 Game-Laws, origin of the antipathy to, 214, 260 Games, the Roman sentence of condem- nation to the. See Arena Gaming, for liberty among the ancient Germans, 90, 445. With loaded dice in the twelfth century, 145-146, 456. With loaded dice in the fourteenth century, 237, 473 Gaols, treatment of accused in, by the Romans, 17, 427. Deficiency of, in England, before the Assise of Claren- don, 130, 450. Private, of the Barons, 217-218, 469. Intimidation and tor- ture in, in the fourteenth century, to make prisoners become approvers, 287- 288, 481. A Coroner's Inquest held on all persons who died in, 288. Breaking of, and escapes by connivance of the keepers of, 292, 481. Of Bishops, 299, 332, 482-483, 487. Letters taught in to secure Benefit of Clergy for prisoners, 300-301, 483. Broken during Wat Tyler's rebellion, 333, 487 Gaol Delivery, Justices of, 221, 469 Gaol Delivery Rolls, referred to, 474, 476, 477. 478, 479, 480, 481. 482, 483,484,48s , .^ ^ ^. ' Gau,' the, compared with the shire, 72 Gaul and Britain, alleged execution by fire in, 10-12, 429 Gaunt, John of. See Lancaster Gavaston, Piers, the Law of Treason il- lustrated by the case of, 224-225, 470 Gentlemen, unorthodoxy and superior learning thought disgraceful to, in the Middle Ages, 353, 493. Debt of, to towns and commerce, 373-374 Germans, \ ^^^ Teutonic Germany, J Gervase, the Chronicle of, referred to, 452, 456, 457 GUI ' Gesta Dei per Francos,' referred to, 458 ' Gesta Stephani Regis,' referred to, .449 Gibbon, the historian, his name incident- ally mentioned, 68 Giles' Life and Letters of Becket, referred to, 449-450 Glanville, description of Trial by Battle, the Grand Assise, and the Inquest of Usury by, 124-127, 451. Division of criminal jurisdiction according to, 453. Definition of 'murdrum ' by, 455. The guild or commune of towns and its privileges according to, 460-46 1. A passage in corrected by authority of the best MS., ib. Wager of Law mentioned by, 450. The Prologue of, compared with the Procemium to Justinian's Institutes, 452 Gloucester, history of the name of, 67. Name given by the city of, to a shire, 72. The burgesses' guild at, and char- ter to, 173, 459-460, 462. Population of, under Edward II., 181, 462-463 Gloucester, a Duchess bf, tried and sen- tenced for Witchcraft, 356-357, 494 Gloucester, a Duke of {uncle of Richaixl II.), murder of, 404-406, 500. De- clared guilty of Treason after death, 406, 500 Gloucester, a Duke of, probable murder of, in the reign of Henry VI., 406, 500 Godwin, compared with Warwick, the King-maker, 82 Gold-workers in England before the Conquest, 65, 440 Goods and chattels, forfeited by flight, after charge of felony, till the reign of George IV., 19, 428 Government, value of settled,, in dimin- ishing crime, 94, 217, 419. Good, in the modem sense impossible in the Middle Ages, 109-110. No abstract theory of, existing in early times, 177, 224, 226-228. More settled under the Tudors than previously, 419 Gracechurch, or Graschirche, scenes in the Market at, 237, 473 Grand Assise. See Assise Grantham, population of, under Edward II., 181, 462-463 Gray, Elizabeth. See Elizabeth Great Seal, the, counterfeited, 273, 479. Fraudulent use of the, 368, 495 Greece, the fine for homicide in, 42, 436 Gregory VII., Pope, his letter to Lan- franc concerning wife-selling, 99-100, 447. Encroachments of, 104-105, 449 Guilds, Roman ' collegia ' or, 23, 429. Existence of ' collegia ' or, in Roman INDEX. 519 HAB HEP Britain, ib. The Guild and the Police- system according to early laws in Eng- land, 57-64, 438-440. Guilds com- pulsory and voluntary, ib. Trade-guilds of various kinds, 64, 440. Town cor- porations, ib. A guild-hall at Dover and a guild of burgesses at Canterbury before the Norman Conquest, ib. First appearance of guilds of weavers, ib. Doubtful origin of the guild-system in England, 65. Importance of town- guilds in history, ib. Recognition of ancient, or growth of new, town- guilds after the Conquest, 173-174, 4S9-461. Of weavers in various towns in England in the twelfth century, 178, 462. Their relation to monopolies, 184, Returns of English, to Parlia- mentai-y Writs, in 1388, 365-366, 495, .497. Gradual change in the position of members of trade-guilds, 377-380, 497-49S. Social or religious in the fifteenth century compared with modern institutions, 381-383, 498 HABEAS CORPUS ACT, com- pared with provisions of Roman Law, 17 Haddan and Stubbs, ' Councils and Ec- clesiastical Documents' of, referred to, 433. 434, 435 Hale, Sir Matthew, a believer m witch- craft, 34. His collection of MSS. in Lincoln's Inn Library, referred to, 462, 467, 468, 471, 479, 480, 481, 483. 488, 499, 5°l, 5°2- Documents in his History of Pleas of the Crown, referred to, 468, 495 Hales, Robert, Prior of Clerkenwell, and Treasurer of England, destruction of his house at Highbury by Wat Tyler's men, 334. Murder of, in imitation of a pubUc execution, 336-337, 487-488 Hall, John, accessary and informer in the case of Gloucester's murder, 404-406, 500 Hampshire, refusal of the Sheriff of, to act in execution of judgment, 278, 479 Hand-having thieves, punishment of, 52, 217,438, 469 . , ^ r,. Handmill, the Roman punishment ot the, 16, 427 Hanging, forbidden by Constantme, as a barbarous punishment, 20, 428. Pri- vilege of, claimed by lords of manors, 82-83 442. Applied to those who failed at the Ordeal in tlie reign of John, 210 467. Not escaped by standing mute in the reign of Henry III., 210, 468 A common punishment under Edward in., 213. A part of the punishmentfor Treason, 225-226, 470- 471 Hanse. See Guild Harbouring. See Receivers Harcla, Andrew, Earl of Carlisle, the sentence passed upon, 226, 470-471 Hardy, Sir T. D., a remark in his Syl- labus of the ' Fcedera ' referred to, 463 Heathendom, 1 Ordinances for the expul- Heathenism, ^'™ "^^ '^f '™'^^ ^"^ Heathenshi;, ^^^^^"^^ centuries, 38, ^' J 434-435 Height, thrOM'ing from a, forbidden by Constantine as a barbarous punishment, 20, 428. Practised in England as a punishment for women, 51, 438 Heiresses, abduction of, 261, 477 Hemingford, referred to, 462 Henry I., development of the Conquer- or's policy of unification under, 107- 109. Rudeness of his attempts at good government, 109-1 10. Cruel punish- ment of coiners by, lio-iil, 449. References to laws attributed to, 437, 439, 444, 447, 454 Henry II., adoption of the Conqueror's policy by, n 3-1 14. Quarrel of, with Becket, 115-117, 449-450. Hisplans of legal improvement, 118-133, 450- 451. Native opposition to his plans, 134-137, 452-453. Character of the Court in the reign of, 142-146, 456. Provision for the sick in the reign of, 151-153, 457. The Pope and the clergy satirised in the reign of, 315 Henry III., opposition to the Eyres in the reign of, 135-136,453. Responsibility of the Hundred in the reign of, 138, 453-455. Persecution of the Jews in the reign of, 188-190, 463. Carica- ture of Jews in the reign of, 190-191, 463-464 (frontispiece). Forest charter of, 215, 469. Provisions for the Con- servation of the Peace under, 218-220, 469 Henry IV. , the fcim forte et dure in the reign of, 210, 499. Policy of, with respect to Church matters, 343, 489 Henry V., surnames in the reign of, 294, 481-482. Policy of, with respect to Church matters, 343, 489 Henry VI., surnames in the reign of, 294, 481-482. Freemen could become villeins in the reign of, r33i, 487. Treatment of women in the reign of, 411,501 Henry VII., state of society at the acces- sion of, 417, 420. Modem civilisation begins with the reign of, 419 Hephsestus, the shield of, representation illustrative of the blood-fine on, 42, 436 520 INDEX. HER INQ Hereford, private jurisdictions in, before the Conquest, 83, 443. Population of, under Edward II., 181, 462-463. A clause ui a charter to, 184, 461 Heresy, punishment of, under Henry II., 131-132, 154-156, 457. Confounded with brigandage by the clergy, 156- 'S?! 457' Regarded as a far more heinous offence than sacrilege, 309. Probable appearance of, before the the Black Death, 310. The crime of, denounced by the clergy in the reign of Henry IV., 342-343. Policy of Henry IV. and Henry V. with respect to, 343. ^ Statute against, 343, 489. Per- secution and burnings for, 344-345, 489. Charges of, associated with charges of treason, 351-352, 490-493' Uncertain definition of, 352. Associa- tion of Witchcraft with, 352, 353, 355, 493. Various opinions on the legality of the punishment for, 489 ' Heretico Comburendo,' writ de, 343- 345, 489 Hickes' ' Thesaurus,' referred to, 440, 444 Highbury, destruction of Hales' resi- dence at, by Wat Tyler's men, 334, 487-488 Highways. See Roads Hill, John, Royal Armourer, 389. Pro- ceedings in the ' Battle of Treason,' described by, 389-392, 499 Holand, outrage attributed to the Prior of, 250-251, 475 Homer's ' Iliad,' referred to, 436 Homicide, how regarded by the Romans, 13. How regarded by the ancient Germans and other barbarous tribes, 41-46, 435-436. Teutonic origin of our early criminal law with respect to, 45> 437- Punishments for, according to ancient laws in England, 49. Re- sponsibility incurred in cases of, by the family of the criminal, by guild, tithing, hundred, &c., 57-62. Prevalence of, before the Norman Conquest, 62-64, 440. Distinction drawn by guilds- men between justifiable, and murder, 62. Somewhat checked under the Conqueror, 98, 447. Punishment for, according to the Assise of Northamp- ton, 131, 451. Number of instances of, in 1 348, compared with the average yearly number of the present time, 253- 2S5i 476. See Appeals, Fines Horace, referred to, 430, 431 Horse, the master or keeper (Custos) of the. North of Trent, Peculation by him and his subordinates under Edward HI., 261-262, 477 Horton, offences charged against the Prior of, 247, 475 Hospitals, fraudulent collection of alms for, in the 14th century, how punished in London, 237, 473. Of little or no avail for the sick in the 14th century, 239. Misappropriation of the revenues of, 305-306, 484 Hoveden, Roger, referred to, 449, 451, 456, 458, 463 Human sacrifices attributed to various tribes, 10-12, 425 Hume the historian, his name incidentally mentioned, 68 Hundred, nature and responsibilities of the, 57-60, 438-440. Moot or court of the, 59, 439-440. Responsibility of the, enforced by the Conqueror, with respect to murdered Frenchmen, 98, 447. The Conqueror's law with respect to the, npt abolished till the reign of Edward HI., 138, 455. Responsible for robberies within its limits by Statute of Winchester, 220, 469 Hunting, a royal privilege, but granted to the citizens of London, and partially to the inhabitant's of other towns, 172, 459 Huntingdon, private jurisdictions in, be- fore the Conquest, 83, 443. Guild of weavers at, 178, 462. Population of, under Edward II., 181, 462-463. Charter to, 459 Huntingdon, Henry of, referred to, 447 IDENTITY of Name, difficulty of es- tablishing in the fourteenth century, 293-294,481. Writ of, and Statutes concerning, 294, 481-482 Impeachment, note on the meaning of, 488 Indictment, origin of proceeding by, 1 20- 121, 450. When and how distinguished from the trial by petty jury, 206-207, 467. How related to appeal, ib., 289- 290. Of Oldcastle as enrolled in the King's Bench and in Parliament, 346- 350 ; the instrument in full, with the discrepancies noted, 490-493. Nature of an, in the fifteenth century, 387, 498 Ine, King, the Laws of, referred to, 438- 439, 445 'Infangentheof,' referred to, 8i2. Mean- ing of, 442 Innkeepers, responsibility of, for their giiests, 94, 218, 235, 446, 469, 473 Inquest, Coroner's, compared with the Inquest of Usury, 127-128, 451. Total number of murders ascertained from verdicts on, in 1348, and compared with those of modem times, 253-255, INDEX. 521 INQ JUR 476. Held on all prisoners who died in gaol, 287-288 Inquest of Fame, for persons found in suspicious possession of goods, 285, 480 Inquisition, 'Ad quod Damnum,' extract from an, 501 Inquisition, 'Post-mortem,' referred to, 483 Intimidation of prosecutors, suitors, and jurors, 257-258, 477. Of tax-collec- tors, 258-259, 477 Ipswich, population of, under Edward II., 181, 462-463. Charter to, 462 Ireland, the fine for homicide in, 42, 436. Assassination not more prevalent in, than formerly in England, 62, 64, 440 Isaac of Norwich, chief creditor of the Abbot and Monks of Westminster, 189. His wealth, and caricature of him, 190-191, 463-464 (see Frontispiece) Italians, the, had, with the Jews, the best knowledge of commerce in the Middle Ages, 185 JERUSALEM, conduct of the Cru- saders at the capture of, 165, 458 Jewels, great robbery of at the Royal Treasury, 199-203, 466-467 Jewry, the, pledged to theCaursins, 193, 464. Statute of the, 194, 464 Jews, position of, in England, from the Conquest to the end of the twelfth cen- tury, 157-159, 457. Their admirable patience and tenacity, 159. Massacre of, in London, on the Coronation Day of Richard I., 160- 1 61', 457 ; at York, 161-162, 457-458 ; at Lynn, Stamford, and Lincoln, 162-163, 457- 458. Combination of clergy, barons, and traders against, 184-185. Envy excited by their superior knowledge of commerce, 185. Regulations for, un- der Richard I., 186, 463. Frauds and coin-clipping attributed to them, 186, 191, 463-464. Their condition in the reign of John ; the Jew of Bristol and his teeth, 186-187, 463. Hostility of the clergy to, 187-188. Are compelled to wear a badge, if males, 188, 463. Pandulf's wish to expel them, 188- 189, 463. Debts of the clergy to ihem, 189-190, 463. Caricature of, in the reign of Henry III., 190-191, 463-464, and frontispiece. Female usurers among, 191. Have rivals in the ' Pope's Money-changers,' 192, 464. Bribe the Justices, 192-193,464. Their privileges restricted, 193, 464. Forbidden to practise usury, 194. Fe- males as well as males compelled to wear a badge, ib., 464. Accused of offences against the Christian Religion, 194-195, 464-465. Two hundred and eighty hanged in London for coining, 195-196, 465. Cruelly expelled from England, 196-197, 465. Division of their property, 197-198, 465 'Jews' Rolls,' referred to, 463, 464 John, King, position attained by the towns in the reign of, 174-175, 459- 461. Position of the Jews in the reign of, 186, 463 Jourdemayn, Margery, the Witch of P^ye, accused of witchcraft, 355, 494. Again accused as an accomi^lice of the Duchess of Gloucester, 356, 494. Burnt in Smithfield, 358 Judges, integrity of modern, compared with the corruption of ancient, 5, 134. Local magnates as, before and even after the introduction of the Eyres, 108. Early complaints of extortions by, 136. Corruption of, at the end of the twelfth century, 143-144, 146, 456. Enquiry into the conduct of, corruption of, and Ordinance and Oath for, under Edward HI., 229-231, 471. Obstructed by armed bands in their circuits, 256- 257, 477- Brawls and bloodshed in their presence in Court, 213, 257, 468, 477. Deceived by false writs and re- turns exhibited in Court, 270, 478. Intimidation of, by armed retainers, 413. S°2 . 'Judicia Civitatis Lundoniac,' 439 Jurisdiction, ecclesiastical, not distin- guished from secular according to an- cient laws in England, 52. Private, existed before the Norman Conquest, 59i 439- Origin of private, 82. Wide diffusion of private jurisdictions in England, 83, 442-443. Municipal, before the Conquest, 83-84, 443. Feebleness of the higher, before the Conquest, 84-87, 449. Separation of ecclesiastical from secular, in the reign of the Conqueror, 103-105, 449. Becket's quarrel with Henry II. con- cerning the limits of ecclesiastical, 115- 116, 449-450. Of the King's Justices, and of the Sheriffs after the esLiblisli- ment of the Eyres, 136, I75>453. 459- Independent, desired by the to^ns, 140, 175, 459. Private, at last op- posed by a national sentiment, 318. Grant of private, by Richard II., 395, 499 Jury, trial by, how connected with com- piu'gation, 56-57, 438. Origin of the Grand, 120-124, 450. Forms of, under Henry II., 124-129, 451. The descent of the Grand and of the Petty 522 INDEX. JUS LAN the same, 129. Mode of separation of the Petty from the Grand after the abolition of Ordeal, 206-208, 467- 468. A common practice of sheriffs to pack a, 278-280, 479. The panel of a, destroyed, and another forged by counsel, 280-281, 480. Common sympathy of a, with an accused lay- man, 284-285, 480-481. Laymen commonly acquitted, and clerks com- monly convicted in the fourteenth cen- tury by a, 303, 483. Prevalence and pimishment of perjury in a, in the fif- teenth century, 386. The Grand both vpitnesses and accusers in the fifteenth century, 387, 498. See Attaint, In- dictment, Perjury, Witnesses Justice, the abstract idea of, inconceivable, in England before the Conquest, 89. Improvements in the administration of, quite recent, 419 Justices of the Jews bribed, 192-193, 464. Of Assise and Gaol-Delivery, 221, 469. Of the Peace, their origin, 221-223, 469-470. Enquiry into the conduct of, under Edward III., 229, 471. The Ordinance and Oath ofthe, 230, 479. See Judges Justinian, alleged discovery of his ' Pan- dects ' at Amalfi, 133. Resemblance of the ' Procemium ' of his Institutes to Glanville's Treatise, 452 KEMBLE, J. M., ' Codex Diploma- ticus ' of, referred to, 440, 442, 444, 479 Kent, retention of its ancient name by, after the Teutonic invasion, 70. Ap- pearance of the same name in that of its capital, Canterbury, ib. Population of, under Edward II., 182, 462-463. Famine in, after the siege of Calais, 235> 473 • . Kent, the Earl of, ruined by Roger Mor- timer, and by his own superstition, 228-229, 471 Kidnapping, of the children of the rich, by the clergy, 342, 489 Kin. See Family King, division of certain dues between him and the sheriff, 83 . Treason and the claim to elect or depose a, 223- 224, 226-227, 470-471. Robbers and brigands seize the property of the, or of his ministers, 244-245, 474 - King's Bench, the Court of, a branch of the original King's Court, 221. False coin sent for inspection to the Court of, 267-268, 478. False writs and returns successfully exhibited in, 270, 478. Confirmation of a forged charter produced in, 275-276, 479. The Chief Clerk of, accused of taking bribes, and threatened, 279, 479-480. Frauds and deceptions in the, 280, 480. Fees taken on both sides, and a jury-panel forged by a counsel in the, 280-281, 480. William Thorpe, Chief Justice of the,' convicted of taking bribes, 282-283, 480. The indictment of Oldcastle as enrolled in, different from the transcripts exhibited in Parliament, 346-350, 490-493. A brawl in, 412, 501-502 King's]Council. ^^Council, Privy Council King's Court, the. Court analogous to, be- fore the Conquest, 84. Its position after the Conquest, and subsequent divisions, 107-108. Represented in the Eyres, 132. Continuance of the traditions of the, 412, 501-502 Kingston-on-HuU, population of, under Edward II., 181, 462-463. Maihem by the rector of, 212, 468. False ac- cusation and fraud by the Examiner of the port of, 267-268, 478 Knighton, the chronicle of, referred to, 48s, 487 Knights, the, of the Middle Ages, com- pared with the modem country gentry, 247. Acts resembling brigandage and forcible entries by, 247-252, 475. Not incapable of the meaner crimes in the Age of Chivalry, 259-262, 477. Pecu- lation by, 265, 477-478. Compared with townsmen of the fifteenth century, 371-376, 496-497. Charges of sur- rendering fortresses for bribes, against, 401-402, 500. &fChivaliy LABOURERS, provisions of the Statute of, enacted after the Black Death, 323, 486. Existence of va- rious classes of, after the Black Death, 323-324. Discontent caused by the Statute of, 327, 487. Position of the poor after the Statute of, 341-342, 488-489. Early relation of, to capital- ists, 378-380, 497-498. Excellent effects ofthe emancipation of, 418 Lancaster, John, Duke of, proposal of Wat Tyler's men to make him king, 334, 488. Their grudge against him, ib. His palace, the Savoy, sacked by the rebels, 334-335, 487-488 Lancaster, records of the Duchy of,' quoted, 486 Land, the tiller of, in the Roman pro- vinces, 21, 428. The 'possessor' of, under the Empire, ib. Burdens on, under the Empire, 22, 428. Primitive tenure of, in common by Teutonic and INDEX. 523 LAN other tribes, 76, 441-442. Tenure of within the 'Mark,' 77, 442. Tran- sition from tenure of, in common, to tenure of in severalty, 77-78. Com- mon, of two liinds in early England, 78, 442. Origin of the private holder of, in England, 78-79. Acquisition by force the first title to, 79-81. Re- mote source of anomalies in the tenure of, 80. Change in the tenure of, effected by the Conquest, not impor- tant in the history of Crime, 103, 448. Reluctance of the owners of, to repair roads in the fourteenth century, 241 - 242, 473- Relation of the first seizure of, by force, to the forcible entries of later times, to the doctrine of seisin, and to open brigandage, 247-253,' 475. The holders of, indebted to the towns- men for culture, 373-376, 496-497. See Forcible Entry, Property Lanfranc, description of the inhabitants of England by, 94-95, 446. Rebukes a Bishop for sacking a religious house, 98-99, 447. Opposes mutilation, 100, 448. Character of, 100-102, 448. Letters of, referred to, 446, 447, 448, 449 Langton, Stephen, Archbishop of Can- terbury, his cruelty to the Jews, 188, 463 Larceny. See Thieves Laws, sketch of the Roman Criminal, according to the Theodosian Code, 13- 20, 426-429 . Criminal, of ancient German and other barbarous tribes, 41- 44, 435-436. Teutonic introduced into Britain, 45, 437. Criminal, asso- ciated with penances in England, 46- 48, 437- Distinctions of class in the criminal, in England, 48-52, 437-438. Responsibility of clergy for, in Eng- land, 49. Barbarity of the early criminal, in England out of harmony with some tokens of civilisation, 76. _ Persistence of the same general charac- ter of, in England, for many centuries, 86-88, 444-445. Early attempts at uni- fication of the, after the Conquest, 106- log, 449. Privileges claimed for the clergy by the canon, 116. The Wager of, how connected with compurgation and the jury, 123-124, 209,450-451. Renewed study of the Roman Civil, 133, 452. Aversion to changes in the, and clamour for the Laws of the Con- fessor, 134. Sketch of the improve- ments in the, in the twelfth, thirteenth, and fourteenth centuries, 1 18-137, 203- 231, 450-453, 467-471. Shown to be less powerful than force by the events of the reign of Edward II., 224-228. LIN Overruled by force in the fourteenth century, 247-253, etc., 475. Brought mto disrepute by cornipt administra- tion, 284, 480. Injustice of all, a doc- trine of Wat Tyler's rebels, 333, 487- 488. See, Jurisdiction, Legislation ' Lawful men,' the term explained, 450 Learning, associated with the suspicion of witchcraft and heresy, 353, 493 ' Leechdoms,' &c., referred to 433, 435, 437 . Legal forms or language, mistakes from the literal interpretation of, to be guarded against, 253-254 Legates, Papal, in England, 102, 149, 188, 448, 456, 463 Legislation, failure of, to check forcible entries, 81. Contrasted with the habits of the people in the thirteenth and fourteenth centuries, 203. How as- sisted by education, ib. Gradual effect of, upon the tone of society, 216- 218. See Government, Laws Leicester, name given to a shire by the town of, 72 Lepers, in the highway from London to Westminster, 238-239, 473. Treat- ment of, 239, 305 I/^se Majeste, the earlier name of a form of High Treason, 224 Letters Patent, concerning the grant of Jews' houses in England, 465. See Patent Rolls Lewdness, Jane Shore condemned to' pen- ance for, 362-363, 494 ' Liber Albus, ' referred to, 473 ' Liber Assisarum, ' referred to, 483 * Liber Custuniarum, ' referred to, 443, 459 ■ Liberate ' Roll, referred to, 468 Liberty of the person, respect of the Romans for, 17, 427. Slight value set upon, by primitive Teutons, 90, 445. The desire for, associated with the desire for religious liberty, 418 Lichfield, a Bishop of, married before the Conquest, 102, 448 Life, respect for human; under the Roman Empire, 12-13. Among Teutonic and other barbarous tribes, 41-43, 436. In England after the Teutonic invasion, 45-52, 437. In England at the end of the twelfth century, 141, 456. In England in the fourteenth centuiy, as compared with present times, 254-255, 476. Little known in the fifteenth cen- tury, 414, 502 Limesey, Robert de, rebuked for sacking the Monastery .of Coventry, 98. Re- moves his see from Chester to Coventry, m, 447 Lincoln, history of the name of, 68. Name given to a shire by the city ,of, 524 ' INDEX. LIN 72. The twelve, 'lagemanni' in, 83, 442. Outrages upon the Jews by the citizens of, 162-163,457-458. Recog- nition of the ancient guild of burgesses at, and charters to, 1 73, 459. Guild of weavers at, 178, 462. Population of, under Edward II., 181, 462-463. Alleged crucifixion at, 195, 464 Lincolnshire, population of, under Edward II., 182, 462-463 Liveries, inferences from the statutes against, 318. The statutes against, long ineffectual, 396-397, 499 Lollards, appearance of, preceded by apostasy of monks, 310, 484. Excited by the action of the higher clergy in public affairs, and the consequent scandals, 338-340, 488. Ecclesiastical and political reasons for the persecution of, 343, 489- Burning of, 344- 345. 389. Writs for the arrest of, through- out the kingdom, 345, 389. Oldcastle, the most distinguished of the, 346. Persecution of, accompanied by perse- cution for witchcraft, 353 London, always known by the same name from the reign of Claudius, downwards, 68, 6g. The word 'byrig' sometimes added to it, 70. Private Jurisdiction in, 83 , 443. Lawless state of, at the end of the 12th century, 141-142, 456. Massacre of Jews in, on the coronation day of Richard I., 160-161, 457. The model for other towns in charter-seek- ing, 171, 459. Ancient privileges of, confirmed by the Conqueror, ib. Be- comes quit of the murder-fine in the reign of Henry I., ib. Retains the practice of compurgation under Henry 1., 172, 459. Its citizens enjoy the privilege of hunting, 172-173,459. Its citizens take the county of Middlesex to farm, 1 74. Guild of weavers in, 178, 462. Its population under Edward II., 181, 182-183, 462-463. Action of the wards of, in criminal pro- ceedings, 199, 466. Journey to, from Dover in the fourteenth century, 234- 235, 473. Approach to, by Southwark, 235-236, 473. Scenes and public punishments in, 236-238, 473. Lepers in the highway from, to Westminster, 238-239, 473. Trials sometimes re- moved to, from the shires, 279, 479. The apprentices of, join Wat Tyler, and behead their masters, 332, 335, 487-488. Slaughter and destruction in, during Wat Tyler's rebellion, 332- 337; 487-488. Female silk-workers in, in the fifteenth century, 411-412, 501. Causes of the modern prosperity of, 418-419 MAN London Bridge, heads of traitors on, 337, 420, 503-504. Heads of Sudbury and Hales fixed on during Wat Tyler's rebellion, 336-337, 487-488 Lord, power of the, over his slaves, 49, 437. Origin of the Lord of the Manor, 78, 441-442. Persistence of the term, after the Conquest, 103 Lushborough, or Luxemburg, false coin called, 267-268, 478 Luxemburg, Jacquette of, 358-360, 494 Lynn, Massacre of Jews at, 162, 457. Population of, under Edward II., 181, 462-463. Fraudulent burial at, 296, 482. Charter to, 460 Lyons, Richard, dealings of, with Edward III. and Alice Perers, 335, 488. Murder of, in Wat Tyler's re- bellion, 336, 487-488 Lysons, Samuel, descriptions of Roman remains in England by, 429-430 MADOX'S 'Firma Burgi,' docu- ments in, referred to, 459, 460 Madox's 'Formulare Anglicanum,' docu- ments in, referred to, 486, 487 Madox's ' History of the Exchequer,' documents in, referred to, 453, 454, 462 Magic. See Witchcraft Magna Carta, struggle of classes indicated by, 176. Privileges of Jews curtailed by, 188. Common Pleas not to follow the king after, 22 1 . Assise of Novel Disseisin according to, 453 Maidstone, population of, under Edward II., 181, 462-463 Maihem, a case of, by two clergymen, 212, 468. Not a felony, ib. The appeal of, ib. Cases of, frequent in the reign of Henry IV., 414, 502. See Mutilation Maine, Sir Heniy, ' Village Communities in the East and West,' by, referred to, 442 Maintenance, statutes against, long inef- fectual, 396-397, 499. Nature and prevalence of, in the fifteenth century, 399. Alice Perers accused of, 410, 501 Malmesbury, William of, referred to, 445 Man, the Isle of, a Duchess of Gloucester imprisoned in, for witchcraft, 357-358, 494 Manners. See England, Society Manor, Court of the, compared with the moot of the Hundred, 59, 439. 'View of Frank-pledge,' a common appurten- ance of the, ib. Origin of the Lord of the, 78. Growth of the, with its com- mon-rights, 80, 214, 441-442. Pri- INDEX. 525 MAP MUT vileges of hanging and drowning attached to a, 82-83, 442- Existence of the, in fact if not in name, before the Conquest, 103, 448. Jurisdiction of the Court of the, long jealously guarded, 217-218, 469 Mapes, Walter, his description of the Court of Henry II., 142-144, 456. His description of the Paterine heretics, 154-155, 457 Marches, lawless condition of the, 246, 475 ' Mark,' the Teutonic tribe within the, 77, 442 Markets, scenes in the, in London in the fourteenth century, 236-237, 473. Attacks by brigands at, 243, 474 Marriage. See Abduction, Women Marshal, duties of the, in the Battle of Treason, 389-392, 499 Marshalsea Prison, escape of prisoners through connivance of the Keeper of the, 292, 481. Prisoners released from by Wat Tyler's men, 333,487-488 Medietate Lingua, a jury de, granted as a favour by the king before the passing of the Statute de, 268, 478 Merchants, burglaries and outrages by, in London in the twelfth century, 141- 142, 456. Escort for, under Henry III. , 220, 469. Supply of arms and provisions to the enemy by English, under Edward III., 264-265, 477. Evasion of duties by, 265, 478. Im- portation of false coin by, 265-266, 478. Peace at home and abroad the natural desire of, 318 Middle Ages, state of society at the end of the, 420-421 Middlesex, the privilege of hunting throughout the county of, enjoyed by the citizens of London, 172, 459. Held to farm by the citizens of London, 174 Middleton, offences charged against the Abbot of, 247, 473 Military discipline, not enforced in the Middle Ages as now, 414-415, 502 Mines ; the Roman punishment of service in, 16, 20, 428. In England in the fifteenth century, 380, 497 ' Ministers, the King's,' commonly ac- cused of corruption, 142-146, 229-231, 261-262, 456, 471, 477, &c. Mean- ing of the term in the Middle Ages,274 Mints, Roman, in British towns, 26. In towns in England after the Teutonic invasion, 74- Private, during Stephen's reign, 111-I12, 449. Dis- honesty at the authorised, iii, 268, 449 478. Debasement of coinage at, by royal authority, 266, 478 ' Monachi Wigomiensis Annales,' referred to, 453 Monasteries ; a theft of relics sanctioned by one, 150-151, 456. Not supporters of the poor out of their own revenues, '5i-'53, 457- Forgeries of charters or deeds, in, with instance, 275-276, 479- Flight from, and robbery of, by monks, 308, 484-485 Money. See Coin Monks, apostate, 308,484. Robbery by, at Ramsey Abbey, ib. Monmouth, Geoffrey of, the founder of historical romance, 144 Monopolies, their relation to guilds, 184 Montfort, Simon de, 176 'Monumenta Ecclesiastica.' See 'Ancient Laws and Institutes of England ' Moor, de la, his Life and Death of Ed- ward II,, referred to, 470, 471 Morals, tone of, in England, before the Norman Conquest, 63. At the end of the twelfth century, 141-169, 456-458. In the fourteenth century, 232-320, 472-485. Of public men in the four- teenth and fifteenth centuries, 339-340 350, 488-489 More,.Sir Thomas,his ' Historia Ricardi Tertii,' referred to, 494 Mortimer, Roger, illustration of tlie law of Treason from his case, 227, 471. Base deception of the Earl of Kent by, 228, 471 Mortmain, devices of the clergy to evade laws against holding land in, 384, 498 Mosse Mokke, a Jew of Norwich, 190- 191, 463-464, and frontispiece Municipal organisation, uncertain origin of, in English towns, 72. Uncertain extent of, before the Conquest, 83-84, 442-444. Growth of, from the Con- quest to the year 1347, 170-175, 459-461 'Munimenta Gildhallse Londoniensis, ' referred to, 443, 459, 473, 476 Murder. See Homicide 'Murdrum,' in the sense of fine for murder, see Fine. In the sense of se- cret slaying, see Homicide Mute, standing, when brought to trial ; hanging after, 210, 468. The ' prison forte et dure ' for, ib. Alleged miracle in prison, after, 211, 468. The 'peine forte et dure ' for, 387-388, 498-499 Mutilation, forbidden by Constantine as a barbarous custom, 20, 428. Intro- duced as a punishment into the early laws of England, 49-5 1> 437-43**- Applied to transgressors against the Forest laws, 97. Opposed by Lan- franc, 100, 448. Substituted for death 526 INDEX. NAM under the Conqueror, ib. Applied to coiners under Henry I., in, 449; and under Henry II, 131, 451. Effects of the punishment of, upon the manners of the people, with instance, 211-213, 468. Instance of, in the reign of Ed- ward III., 213, 468. Gradual sub- stitution of other punishments for, 213-215, 469. By brigands in the fourteenth century, 242, 474. A com- mon practice in the reign of Henry IV. 414, 502 NAME, writ of identity of, 294, 481--482, See Surnames Names, note on the spelling of Pre-Nor- man, 434 'Nativi.' &^ Villeins Neckam, ' De Naturis Rerum,' referred to, 456 Neighbourhood. See Country, Indictment, Jury, Witnesses Newark, population of, under Edward II., 181, 462-463 Newburgh, William, referred to, 456, 457 Newcastle-on-Tyne, ' Customs of,' re- ferred to, 461 Newgate, scenes in the Market at, 236- 237, 473- Ill-treatment and torture of prisoners in the gaol of, ascertained by commission of enquiry in the four- teenth century, 287, 481 Niort, Charter to, 460 Nisi Prius, commission of, 221, 469 Norfolk, population of, under Edward II., 181, 462-463 A forged writ in the possession of the Sherilif of, 276-277, 479 Norman Conquest, the, first effects of, 96. Exaggerated account of, by native annalists, ib. , 447. Erection of castles, one of the effects of, 105. The military spirit stimulated by, 106. Unification of the kingdom partly a result of, ib. The condition of the lowest classes im- proved by, 324-331, 486 Normans, relations of, to tire Englishry, 98-100, 447-448. How superior to the conquered, 99. Distinct from the native population in England in the reign of Henry II., and afterwards, 137-138, 453-455 Northampton, Assise of, 122, 130-133, 451. Population of, under Edward II., 181, 462-463. Description of a Trial by Battle at, 205, 467. Statute of, 223, 469. Charter to, 459 NorthfeldjThomas, a Professor of Divinity, accused of witchcraft, 355, 494 Norwich, private jurisdictions in, before the Conquest, 83, 443. Population of. ORD under Edward II., 181, 462-463. Isaac and other Jews of, 190, 191, 463-464. Charges against a Bishop of, 339, 488. Guild of Saddlers and Spurriers at, 366, 495. Charter to, 459 Nottingham, Guild of weavers at, 178, 462. Population of, under Edward II., 181, 462-463. Charter to, 461 Novel Disseisin, Assise of, according to Magna Carta, 453 OATES, the disposition which makes an, inherited from a past age, 4, 286 Oath, evidence to be given on, according to Roman Law, 17, 427. Of the com- purgators in England before the Norman Conquest, 56, 438. Of the Justices under Edward III., 230, 471. The Justice's, violated by William Thorpe, Chief Justice of England, 283, 480 Officers, of all departments corrupt in the twelfth century, 142-146, 456. Cor- rupt in the fourteenth century, 274, 479. False personation of the king's, the queen's, the sheriff's. Ecclesiastical,, &c., 238, 271-272, 281-282, 473, 478-479. 480 Oldcastle, Sir John, effect of an earlier state of society upon his position, 315. The most distinguished of the Lollards, 346. Suspicion attaching to the in- dictment of, as enrolled in the King's Bench, 346-347. Outlawry of, 347. Sentence upon, 348. Discrepancy be- tween his indictment as enrolled in the King's Bench, and as enrolled in Par- liament, 348. Question whether he suffered through a forgery, 348-350. His death not due to the clergy alone, 350. Aims of his party, 351. Com- pared with Cromwell, ib. The opinions and superior learning of, considered unworthy of a gentleman, 353, 493- The indictment of, at length, as enrolled in the King's Bench, with the discrepancies in the Parliamentary transcripts noted, 490-493 Ordeal, ceremonies of the, in a church, described, 53-55, 438. Effects ef the, 52, 54. Enforced by the Assise of Clarendon, 120, 450. Its relation to the grand and petty juries, 131, 467- 468. Persons acquitted by, compelled to abjure the realm, 131. The cere- mony of, transferred from a church to a pit, 264. Abolished through the influence of the Church, ib., 467. How the petty jury became a substitute for, 206-208, 467-468 Ordinance of the Justices, the, 230, 471 INDEX. 527 ORD Infringement of, by William Thorpe, Chief Justice of England, and the con- sequences, 282-283, 480 Ordinary, refusal of clerks to plead in the absence of their, 212,468. Mean- ing of delivery to the, 298. Power of the, when Benefit of Clergy was claimed, 300-301, 482-483 Origen, evidence of prevailing super- stitions from the writings of, 36, 432 ' OriginaUa ' Roll, referred to, 465 Orleans, the Maid of, character, career, and execution of, for heresy and witch- craft, 354-355, 493 Orleton, ' Apologia ' of Adam, referred to, 471 Outlaws, bands of, in the twelfth century, 156-157, 457- ' Chivalers' as, in the fourteenth century, 250-251, 475. Placed on a jury to secure the convic- tion of an innocent man, by a Sheriff of Sussex, 279, 479 Oxford, decision of a council at, with respect to heretics, 155, 457. Guild of weavers at, 178, 462. Population of, under Edward II., 181, 462-463. Outrage, as alleged, by a Jew at, 195, 464-465. ' Scandalum ' against Robert Vere, Earl of; 399, 499 Oyer and Terminer ; commission of, 221, 469 P AC ATI AN, 'VicariusBritanniarum,'- 26, 29, 429, 431 Palatine, Counties, effect of independent jurisdictions in, 396-397, 499 Palgrave, Sir F. , a 'document printed in his 'English Commonwealth,' referred to, 450 ' Pandects', alleged discovery of Justinian's, at Amalfi, 133 Pandulf, the Papal Legate, desires the expulsion of the Jews, 188-189, 463 Panels of jurors, frauds connected vrith, 278-279, 280-281, 479, 480 Paper, first manufacture of linen, 365, 495, Influence of, upon the art of printing, ib. Becomes a substitute for parchment, 365-367, 495. Increase of correspondence connected with the manufacture of, 366-367, 369 Parchment, manufacture of paper stimu- lated by the increasing expense of, 365- 367, 495 ^ ^ . Pardons, practice of forgmg, 272, 479. Practice of transferring, 293, 481-482. Readily granted in time of war, 294, 482. Obtained by false pretences 295, 482. Petitions in Parliament against the too frequent grant of, 295- 296, 482. For false burial, 296-297, 482' PAT Paris, Matthew, the ' Historia Major ' and ' Historia Minor ' of, referred to, 449, 463, 464, 465, 466, 472 Parish relief, distribution of tithes pos- sibly the origin of, 341 Parks, forcible entries upon, and damage to, 347-253, 475 Parliament, origin of, 1 76-177. First stage towards the representation of towns in, ib., 462. Members of, chosen with special reference to their ability to bear the fatigues and dangers of travelling, in the fourteenth century, 242. Petitions in, against the too fre- quent grant of pardons, 295-296, 482. Petitions in, against alien priories, 306, 484. An interpretation of Domes- day Book declared false by, 330, 487. The Commons in, protest against ec- clesiastical abuses, 343, 489. Sentence on Oldcastle in, 347-348, 490. Dis- crepancy between the indictment of Oldcastle as appearing on the Rolls of, and as enrolled in the King's Bench, 346-351, 490-493 Parliamentary Paper, referred to, 476 Parricide, Roman punishment for, 15, 426 Parsons, the houses of, a common object of attack in the fourteenth century, 303, 483. Frequently accused of homicide, 307, 484. See Clergy Partisanship, the only bond holding men together in England before the Con- quest, 88-89. The power which settled disputes, ib. Persistence of, among recognitors or jurors, 126-127. Attempts to counteract, 128. Its ap- pearance among barons and burghers under Edward II., 183-184. Its effects upon the verdicts of petty jurors, 208-210. Causes intimidation of pro- secutors, suitors, and jurors, 257-258. Effect of, upon the fate of approvers, 286-287. Effect of, in trials of clerks, 302-303. Connected with more chari- table feelings by the guilds, 381-383. Weakened after the Wars of the Roses, 387. See Appeal, Approvers, Brigands, Family, Compurgation, Country, Guilds, Jury, Maintenance, Towns, Witnesses ' Paston Letters,' the, referred to, 501, 502 ' Patent Rolls,' referred to, 459, 462, 464, 465, 466, 467, 468, 471, 474, 475, 477, 478, 479, 480, 481, 483, 485, 487, 488, 489, 493, 494, 499. 500, 501, 503 Paterines, or Publicans, treatment and alleged doctrines of heretics called, 154-156, 457. Treatment of, com- pared with that of the Jews, 197 ' Pater Noster,' the, used as a charm, 40, 528 mJDEX. PAU 435. Repetition of, as a substitute for the penance of fasting. 47, 437 Pauperism. See Poor, Poor-Laws Peace,' origin of Justices of the, 218-223, 469-470 Peace-Pledge, the institution described according to ancient laws in England, 57-60, 438-440. Its futility, 60-64, 80, 94, 440. The view of ' Frank- pledge ' and the manor, 59, 439. T^e- cognised in the Assises of Clarendon and Northampton, 131, 450-452. At- tempts to render it effective under Henry III., Edward I., and Edward III., 218-223, 469-470 ' Peine forte et dure,' origin of the, in the 'prison forte et dure,' 210-211, 468. The judgment of, when and how given, 387, 498 ' Pell Rolls,' referred to, 461, 463, 494 Penance, imposed for the practice of Witchcraft, 38-39, 435. Commuta- tion of, associated with the practice of compounding for homicide, 47, 437. Judgment of, see ' Peine forte et dure ' Perers, Alice, mistress of Edward III., influence of, 335, 410, 488, 501. Ac- cusations of maintenance against, 410, 501. Marriage of, ib. Perjury, caused by the practice of Com- purgation, 55-57, 438. Caused by the system of Peace-Pledge, and by volun- tary association in guilds, 60-62, 439- 440. Prevalence of, among the early recognitors or jurors, 126-I27, 451. Perpetuated after the substitution of the petty jury for ordeal, 208-210. Of jurors, both in civil and criminal trials, under Edward I., 220, 469. Follow- ing upon conviction before Justices of Trailbaston, 222, 470. Attaints of jurors for, and prevalence of, in the reign of Henry VI., 386, 498 Pershore, fees taken from both sides in a suit between the Abbot of, and the Abbot of Westminster, 280-281, 480 Personation, false, of law-officers, her- mits, purveyors, &c. , how punished in London, 238, 473. Of the Chan- cellor's kinsman and purveyor, 269- 270, 478. Of a merchant acting for Queen Philippa, by a chaplain, 271, 478-479. Of a sheriff's officer by a brigand, 271-272, 478-479. Of Ri- chard II. and Edward V. after their deaths, 408-409, 500-501 Petroc, Saint, his body stolen and taken to a Breton monastery, 150-151, 456-457 Petyt MSS., referred to, 467, 470, 501, 503 Philippa, Queen, her money and jewels taken by brigands, 245, 474. Her POL agent personated by a chaplain, one of a band of brigands, 271, 478—479- Money obtained by a forged receipt of, 272, 478-479. Refuge taken within a liberty of, by a sheriff who had refused to execute judgment, 278, 479 Pilgrimages, to the tomb of Becket, 150, 456. To the Holy Land, 232, 472 Pillory, punishment of the, common under Edward HI., 213. Offenders to whom applied in London, 237-238, 473. Long an ordinary punishment, 420 ' Pincema, ' a corrupt, 503 Pipe Rolls, or Great Rolls of the Ex- chequer, importance of, in history, 107- 108, 449. References to the, 427, 449, 451. 452, 453, 455, 45^, 457, 458, 462, 498 Piracy, prevalence of, in the Middle Ages, 233-234, 472 Pit, for drowning women, an appur- tenance of a manor, 82, 442 'Placita Corone,' referred to, 467, 468, 472, 473, 476 'Placita de Quo Warranto,' referred to, 439 Plague, approach of, desolation caused by, and immediate after-effects of the, of 1349, 319-321, 485. Social effects of every great, 322 Pleadings, in French after the Conquest, 312. In English, in the reign of Edward III., 313, 485 Pleas of the Crown, under Henry II., 136, 453. Ancient privileges with respect to, claimed by the towns, 172, 459 Pliny, referred to, 425 'Plowman, the Vision of Piers,' illustrated by the records of crime, 306. The author of, a young man at time of the Black Death, 309. Effects of the Black Death discernible in, 310. Quotation from, 311, 485. Useful in drawing a picture of the age, ib. Tone and language of, compared with that of Chaucer's writ- ings, ib., and 314 Podelicote, Richard, his confession con- cerning the robbery at the Royal Trea- sui-y, 200-20I, 466 Poggio Bracciolini, on the habits qf the English, 496 Pole, Michael de la, origin of, 371, 496. ' Scandahmi ' against, 399, 499 Pole, William de la,- charges of corrap- tion against, and death of, 402-403, 500 Police, early system of, in England. See Peace-Pledge ' Pohtical Poems and Songs ' (edited by T. Wright), referred to, 488, 489, 493, 494, 497 INDEX. S29 VOL PUN Poll-tax, advocacy of a, attributed to Archbishop Sudbury, 331. Wat Ty- ler's rebellion following upon a, 332 et seq., 487-488 Polycarp on tlie celebration of Easter, 433 Poor, the, relation of to the clergy, before the dissolution of monasteries, 151-153. 457- Complaint of, that the tithes were diverted from their support by the appropriators of parish churches, 341, 488-489. Before and after the Black Death, 341-342. See Beggars, Labourers, Slaves, Villeins Poor Laws, first rudiments of the, 151- 153. 341, 457. 488-489 Pope, the, attempts of the Church to give feudal supremacy over kings to the, 102-104, 449. Resistance of the English to presentations or collations by the, 303-304, 483-484 Population, distribution of the, in Eng- land, under Edward II., compared with that of modem times, 180-183, 462-463. Proportion of cases of ho- micide to, in 1348, and now, 253- 255, 476 Port-reeve, functions of the, 443-444 Portsmouth, dockyard at, 425 ' Possessor. ' See Land Posting in use among the Romans, 25, 430 Premunire, dislike of papal interference shown by the Statutes of, 303, 483 Presentments, before the Conquest and soon afterwards, compared with those of the Grand Jury, 121, 128, 450 Press, the torture of the. See ' Peine forte et dure ' Prevention of Crime. See Commerce, Edu- . cation, Government, Law, Punishments Prices, effects of the Black Death upon, 321, 485. Regulated by the Statute of Labourers, 323, 486 Primacy of England, dispute concerning the, 148-149, 456 Prince, the Black, his servants beaten and robbed, 245, 474. His character exceptional in the fourteenth century, 314. His instructions disregarded by the Bishop of Winchester, 339, 488 Principal, accessary and accomplice, effects of the law of, in screening criminals, 291, 309 Printing introduced when the belief in witchcraft was most prominent, 363. The invention of the art of, not indi- cative of a great stride in invention, 364. How connected with the ancient use of the seal, 364-365, 494-495- Importance of the manufacture of paper to the invention of, 365-367, 494-405. Introduced into England, VOL. I, M 369. Importance of commerce in the history of, 369-370 Prison. See Gaol 'Prison forte et dure,' character of, in the reigns of Edward I. and Edward in., 210-211, 468. Alleged miracle after sentence to, ib. Prisoner of war, a, becomes the booty of brigands, 244-24.5, 474 Privy Council, Proceedings and Ordi- nances of the, referred to, 494, 498, 500 Property, landed, under the Roman Empire, 21, 428. Recognition of personal, under the Empire, 23, 429. Possession of landed and other, by individuals, slowly recognised by Teu- tonic marauders, 76-80, 441-442. First title to landed, in England, 80. Increased value of, associated with the growth of towns, 374. See Land Prosecution. See Accusation, Appeal, Approvers, Indictment, Jury Provinces, Roman, their participation in the benefits of Roman Law, 18, 417 Provisors, popular feeling shown by the Statutes of, 303, 483. Necessity for legislation against, illustrated, 304, 483-484 Psalms, fasting commuted for, 47, 437 Publicans or Paterines, treatment and alleged doctrines of heretics called, 154- 157, 457 Publicans, or farmers of the revenue under the Empire, the Jews in England compared with, 158 Public men, tone of morals among, in the fourteenth and fifteenth centuries, 339-340, 350, 403-404, 488, 500 Public works, importance of, among the Romans, 25, 429 Punishments, by fire in Ancient Gaul and Britain, 10-12, 425. Roman, in the Arena, 12, 426, 428. Roman, by fire, 12, 14, 34, 426, 432. Origin of the more cruel forms of, 14. Gradation of, under the Empire, 15-16, 426-427. Roman, for 'parricide,' 15, 426. Capital, original meaning of, 16. Roman, of the mines, of transporta- tion, of the hand-mill, 16, 427. Bar- barous, of mutilation, stoning, and throwing from a precipice, forbidden by Constantine, 20, 420. The same legalised in England, 49-51, 437-438. General atrocity of, according to an- cient laws in England, ib. Of burning by women, 51, 438. Of mutilation under the Conqueror, 97-98, 100, 448. Under Henry I., m, 449, and under Henry II., 131, 450. Of the first heretics in England, 156-157, M S30 INDEX. PUR 457- Ordained for the , Crusaders of the Third Crusade, 168-169, 458. Of hanging under John, 210, 467. For standing mute, 210-211, 468. Effects of cruel, upon the population, ZII-213. Substitution of hanging, the pillory, and the tumbrel for muti- lation, 213. Of Piers Gavaston, and of the Despensers, illustrations of ^he law of treason, 225, 470. Of drawing, hanging, burning the entrails, beheading, and quartering, for high treason, and the reason assigned, 226, 470-471. Of the 'pillory and other public, to whom applied in London, 237-238, 473. Inflicted on women, and their effect on the feminine cjaa- racter, 255-256, 476. Public, imi- tated during Wat Tyler's rebellion, 336, 487-488. Of burning for heresy, 344-345, 489. Regarded as a mode of education, 420 Purgation after successful claim of Benefit of Clergy, 298-302, 482-483 Purveyance, frauds on pretence of, 238, 269, 473, 478 QUARTERING, a part of the punishment for treason, 225-226, '~^ 470-471. Eifect of, in hardening the populace, 336, 421, 488, 503 Queen's or King's Bench. See King's Bench RACE, not to be treated as a deter- mining cause of Crime in modern England, 7. How disputes concerning, should be determined, 69. Question whether the English are or are not of Teutonic race of little importance in the history of Crime, and why, 71 Rageman, Statute of, 469 Ramsey Abbey, robbeiy at, by monks of, 308, 484 Rape, threat of, used as an inducement to marry, 260-261, 477 Receivers of felons and stolen goods, women as, 256. Not brought into existence by great cities, 285, 480-481. Parsons of Churches as, 303, 483 Records, the Public, extracts from, not a sufficient substitute for the records themselves, 5-6. Use made of, in the 4th chapter, -307. The evidence of, used to illustrate the works of Wycliffe, the 'Plowman,' Chaucer, &c,, 311. The life of the people not to be ascer- tained without a study of, 317. Anxiety of Wat Tyler's men to burn, 334. Re- ferences to, see under the various heads Recreancy, meaning of, 125. Alleged RIC case of, brought before the King and Council, 205-206, 467 Rectors, accusation of brigandage, har- bouring, homicide, maihem, &c., against, 211-213, 247-253, 302-304, 307, 468, 475, 483, 484 Red Book, the, of the Exchequer, 453- 454 Reeve, of town, hundred, and shire, 84, 443-444 'Reformation,' the, shown by the his- tory of Crime to have been desired by a great part of the population^ from the fourteenth century downwards, 298 et _ seq. Indications, of the coming, in the 'apostasy' of monks, and in the writings of the 'Plowman,' Wycliffe, &c., 311 Regent, conspiracy to appoint Oldcastle, 351, 491 Relics, value set upon, in the .twelfth cen- tury, 149-150, 456. Purloining of, sanctioned by a religious house, 15°- 151, 456 , Reliefs, an excrescence on the feudal or- ganisation, 448 Religion, movements connected with, in the fourteenth, fifteenth, and sixteenth centuries, illustrated by the history of Crime, 297-298. Carried to fanaticism by great plagues, 322. Discontent with the established among clergy and laity, after the Black Death, 329, 487. Progress and causes of discontent with the established, after Wat Tyler's rebel- lion, 337-342, 488-489. Discontent with, associated with political discon- tent, 340-3.42, 488-489. The struggle for freedom in, long ineffectual, 419- 420. See Benefit of Clergy, Christi- anity, Church, Clergy Remembrancer, King's or Queen's, re- cords of the, referred to, 463 ■Repair of Roads. See Roads Representation, growth of the principle of, 176-178, 462. How acquired by the towns, 177, 462. Importance of, in the growth of a nation, 318 Retainers, Statutes against, long ineffec- tual, 396-397, 499. Used to impede the course of justice in the reign of Henry VI., 413, 502 Revenue, the, of England, in 1245, 199, 465-466 Rewards to witchfinders in 1441, 356, 494 Riots, common in law-courts, in the reign of Edward III., 256-257, 477; and in the reign of I-Ienry VI., 412, 501- 502 Richard I., provisions "in his reign re- specting the jurors of the Hundred, 1 28- 129, 45'' His astonishment at the INDEX. 531 RtC SAN profligacy of the clergy, 146-147, 456. Scene at his coronation, 159-160, 457. Massacre of Jews on his coronation- day, i6o-l6i, 457-458. His charac- ter, popularity, and part in the third Crusade, 166-169, 4S8- Progress made by townsmen in the reign of, 171-172, 459- Regulations for the Jewry in his reign, 185-186, 463 Richard II., claim of villeins to be free, and general discontent at the accession of, 329-332, 487. Rebellion of Wat Tyler in the reign of, 332-337, 487- 488. Conduct of, during the rebellion, 337. First of his line known to have signed his own name, 367. Challenge of, to the French king, 393, 499. The horrors of war described by, ib. Ge- nerous sentiments of, when a youth, 393-394, 499. Commanders bribed by the enemy in the reign of, 401-402, 500. Said to have prompted the mur- der of his uncle Gloucester, 404, 500. Probable murder of, 406, 500-501. Contemptible character of, in later life, 406-408, 500. Personation of, after ■ alleged death, 408-409, 500-50 1 Richard III., offer of the throne to, 360. Suggests an accusation of witchcraft against Jane Shore, 362, 494. The Age of Chivalry illustrated by the con- duct of, 409. Description of society in Parliament, under, 416-417, 502-503 Rishanger, William, referred to, 467 Roads, burden of maintaining, under the Empire, 22, 428. Number of, in Roman Britain, 24, 429. Maintenance of, after Teutonic inroads,. 75, 441. Aid of the ancient Roman, in restoring civilisation, 75, 76. State of the, in the reign of Edward II., an impedi- ment to commerce, 182. State of the, in the reign of Edward III., 240-242, 473-474. The clergy dispute their liability to repair the, ib. Dens of robbers on, 242, 473-474- Infested by brigands, 242-243, 474. The Ro- man, surpassed at length by the inven- tions of Stephenson, 418 Robbers, dens of, upon the highways, 242, 473-474 Robbery, somewhat checked under the Conqueror, 98, 447. Of a monastery by a bishop, 98-99, 447. Puni.shment for, according to the Assise of North- ampton, 131. 451. At the Royal Treasury, under Edward I., 198-202, 466-467. The hundred responsible for, if committed within its limits, 220, 469. See Brigands, Punishments Rochester, population of, under Edward II., 181, 462-463 Rochester, chronicle of a Monk of, re- ferred to, 467 Rogers, J. E. T., materials in his 'His- tory of Prices,' referred to, 467 Roman Conquest and Culture, general view of, 8 Roman Criminal Law, 12-20, 426-428. Native customs in Britain superseded by the, 45. See Classes, Punishments, Slaves, &c. Roman Civil Law, renewed study of, 133 Roman Civilisation, indications that it flourished in Britain, 22-23', 24-30, 429-430- Its origin out of barbarism, 73-74. Its extinction in rural Eng- land, 87-88. Compared with the state of society at the end of 'the fifteenth century, 417 Roman Stations in Britain, survival of names of, 67-70. It is of Httle im- portance in the history of Crime whe- ther they were or were not the begin- ning of Enghsh towns, and why, 70, 71 ' Roman Roll,' referred to, 471 Rome, the right of appeal to, claimed by Becket, 116, 449-450 Roses, the Wars of the, 376. Convey- ances to evade forfeiture for treason during, 384-385, 498. Horrors of, 415-417, 502 ' Rotuli Chartarum,' referred to, 457, 459. 460, 461, 462 'Rotuli Curia; Regis,' referred to, 447, 4SS . 'Rotuli Hundredorum,' referred to, 439 ' Rotuli Parliamentorum, ' referred to, 469, 470, 471, 482, 484, 485, 487, 488, 489, 490, 491, 492, 493, 494, 496, 499> 500. 5°i. S'32, 503 Routiers, or Brabazons, bands of bri- gands, heretics, or mercenary soldiers so-called, 156-157, 457 ' Royal Letters, ' referred to, 463, 464 Rymer's 'Fcedera,' records printed in, referred to, 459, 460, 461, 462, 465, 466, 469, 472, 480, 487, 490, 493, 494, 498 ' O AC and Soc,' words indicating Juris- ^J diction, 442-443. &« Jurisdiction Sacrilege, a common offence before the Black Death, 308-309, 484-485 St. Albans described as a ' Chester ' by the Teutonic invaders, 67, 440 Salisbury, population of, under Edward II., 181, 462-463 Salisbury, John of, his ' Polycraticus,' re- ferred to, 456 Sanctuaries, the law of, and its effects M M 2 532 INDEX. SAU SLA 232-233, 472. In Southwark, 235, 473 Sautre, William, writ for burning, 344- 345, 489. A martyr in the literal sense, 345 Savages, thought virtuous because they cannot record their misdeeds in writir;g, 31. Not incapable of the meaner crimes, 259. How related to knights errant and brigands, 259-260. Cvis- toms of, the real foundation of pre- scription, 331 Savigny's 'Geschichte des rbmischen Rechts im Mittelalter,' referred to, 437> 451 Savoy, Palace of the, the dwelling-place of John Duke of Lancaster, 334. Burned in Wat Tyler's rebellion, 335, 487-488 ' Saxon Leechdoms ' referred to, 433, 435, 437 ' Scandalum Magnatum,' statutes against, 398, 499. Origin of charges of, ib. Instances of, 399-400, 499 Scarborough, manufacture of false coin and plate at, 266-267, 47'8 Scolds, punishment of, in England in the Middle Ages, 238, 253, 420 Scope of the work, 1-6 Scotland, the Marches towards, lawless condition of, in the fourteenth century, 246, 475. Good effects of the Union in abolishing, 246 Seals, common practice of counterfeiting, under Edward III., 269-272, 478. Imitations of Sheriffs' accepted as genuine in Courts of Law, 270, 281, 480. Counterfeit, used by brigands to obtain money, 271-272, 478-479. Counterfeiting of, formerly necessary to complete a forgery, 272. The Great Seal Counterfeited, 273, 479 ; and fraudulently used, 368, 495. Re- lation of, to the art of Printing, 364- 365, and to the art of writing, 367, 495 Searle, William, yeoman or valet of Richard II. , concerned in the murder of Gloucester, 405, 408, 500-501. Said to have aided a false personation of Richard II., 408-409, 501 Security, general sense of, in Roman Britain, 29 Seisin, crimes of violence illustrated by the doctrine of, 81, 246-253, 475 'Select Charters,' referred to, 439,450 Senchus Mor (Ancient Laws and Insti- tutes of Ireland), 436 Seneschal of the Chamber, commissioned to enquire concerning forgeries of Ex- chequer Bills, 273, 479 Serjeant-at-Arms, the King's, is atro- ciously murdered on his journey, 245- 246, 475 o T 1 Severalty, tenure of land m. See Land Sherborne, forcible entry, or brigandage, by the Abbot of, 247, 475 Sheriffs, divide certain dues with the king, before the Conquest, 83. The Inquest of, and corruption of, 132-133, 451. Attempts to make them subor- dinate to higher judicial authority, ib. Jurisdiction of, after the establishment of the Eyres, 136,451, 453. Corrup- tion of, at the end of the twelfth cen- tury, 143-144, 456. Decapitation of malefactors by one of the, in the reign of Edward I., 208,468. Robbery by one of the, under Edward III., 248, 475. Forgery by, to screen criminals, 276- 277, 479. Partiality and corruption of, 277, 479- Refusal of, to act in execu- tion of judgment, 278, 479. Juries - packed by, with outlaws and other dis- qualified persons, 278-279, 479. Jury- panel of one of the, destroyed by a counsel, and a forged panel substituted, 280-281, 480. Connivance of, at crimes of violence, 284, 480. Neglect of, to summon jurors, 292-293, 481. Charges against, in the fifteenth century, 403, 420, 503 Shifting Severalty. See Land Shipbuilding, taught to the barbarians by Romans, 31, 431 Shires, relation of the, to the towns, 71- 73. Doubtful origin of their organisa- tion, 72. Retention of Roman names in the names of, ib. Independence of, 84. The courts of the, 84, 443-444. See Sheriffs Shore, Jane, accused of witchcraft, 362, 494. Found guilty of adulteiy and lewd behaviour, ib. Penance undergone l^y, 362-363, 494" Shrewsbury, population of, under Edward II., 181, 462-463. Charter to, 462 Sibille, Walter, charge of Scandalum Magnatum against, 399, 499 Sick, provision for the, in the twelfth century, 151-153, 457 Silk, employment for women in working, in the fifteenth century, 411-412, 501 Simnel, Lambert, prototypes of, 408- 409, 500-501 Slander against nobles distinguished frqm slander against their inferiors, 398-399- ^ec ' Scandalum Magnatum ' Slavery, not first introduced into any countiy by the Romans, 14. Common among the Teutonic invaders, 90, 445. Cessation of wife-buying the first step towards the abolition of, 92, 93 INDEX. ".Zl SLA STA Gradual extinction of, in its last form of viilenage, 417-418 Slaves, punished more severely than free- men by the Romans, 13-14, 426. Im- provement in their condition after the adoption of Christianity, ig. Correc- tion of, limited under Constantine, 20, 428. Their treatment by Romans and by barbarians. contrasted, ib. Punish- ment of, by death and mutilation, according to ancient laws of England, 49, 437-438. Religious exercises of, restricted, ib. The most cruel punish- ments reserved for them and women, 50. Stoning of, 51, 438. Burning of female by female, ib. Export of, from England, before the Conquest, 89, 445. Relation of, to churls, 80- 90, 445. Export of, from England forbidden by the Conqueror, 99, 445. Change of their condition into that of villeins, or that of townsmen, or that of brigands, 324-326, 486-487 Smith, Toulmin, his ' English Gilds,' re- ferred to, 461, 495, 497, 498 Smuggling in the fourteenth century, 265-267, 478. In the fifteenth century, 372, 496 'Soc' &^ 'Sacand Soc' Socage-tenure, 174 ■Society, general view of, in Britain, under the Empire, 12-38, 426-432. General view of, in England from the sixth century to the eleventh, 85-95. General view of, in England, at the end of the twelfth century, 141-169, 444-446. The general tone of, stronger than a statute, 203. Gradual effect of laws upon the tone of, 216-218. General view of, in England, in the year 1348, 232-321,. 472-485. Effects of every great . plague upon, 322. Effects of the Black Death upon, in England, 320-323, 328-329, 486-487. New grouping of the classes of, at the end of the fifteenth century, 380, 383, 497-498. Tone of, at the end of the fifteenth century, 420-421, 503-504 Soldiers, complaints of crimes by, in the fifteenth century, 414-415, 502 Somerton, population of, under Edward II., 181, 462-463. Brawl before the .Justices at, 257, 477 Songs. See Political Poems and Songs Sorcery. See Witchcraft Southampton, population of, under Edward II., 181, 462-463 Southwark, population of, under Edward II., 181, 462-463. Approach to London by, and sanctuaries and stews in, 235, 473. The resort of criminals, 236, 473 Stafford, population of, under Edward II., i8l, 462-463 Stamford, the twelve 'lagemanni' in, 83, 442-443. Outrage upon the Jews at, 162, 457. Population of, under Edward II., 181, 462-463 Star-chamber the, formerly a. meeting- place of the House of Lords, 413, 502. An affray in, ib. 'State Trials, ' error in the, 470. Not always taken from original sources, 490 Statute, of Marlborough, 52 Henry III., u. I (Barons) 469 — of Westminster, the First, 3 Ed. I., c. 12 (' prison forte et dure'), 468 c. 34 (Scan. Mag.), 499 c. 38 (Perjury), 469 — of Rageman, 4 Ed. I., 469 — of the Jewry, Ed. I., 464 — of Bigamy, 4 Ed. I., c. 5, 483 — of Merchants, 13 Ed. I., 462 — of Westminster, the Second, l3Ed. I., ^. 18 (Elegit), 462 c. 30 (Justices), 469 — of Winchester, 13 Ed. I. (Peace, &c.), 469. 473 — of 27 Ed. I., c. 3 (Justices), 469 — of 33 Ed. I. (Conspirators), 499 — of 35 Ed. I. (Papal Provisions), 483 — of Northampton, 2 Ed. III., c, 2 (Peace, &c.), 469, 470, 473 14 Ed. III., St. I., c. 4 (Present- ment of Englishry), 485 18 Ed. III., St. 2, cc. I and 2 (Peace), 470 18 Ed. HI., St. 3, c. 2 (Benefit of Clergy), 482 — of Labourers, 23 Ed. III., St. I, 486 — of Labourers, 25 Ed. III., St. I, 487 — of Treasons, 25 Ed. III., St. 5, c. 2, 470 25 Ed. IIL, St. 6, c. 4 (Benefit of Clergy), 483 34 Ed. III., c. I (Peace), 470 36 Ed. III., c. 16 (Pleadings in EngUsh), 48s — — 37 Ed. IIL, c. 2 ('De Idemptitate Nominis'), 481-482 42 Ed. III., c. 4. (Peace), 470 50 Ed. III., c. 3 (General Pardon), 488 I Ric. II., c. 6 \ Transcripts of 2 Ric. II., St. 2, \ Domesday, c. 2 J 487 I Ric. II., c. 7 (Retainers), 499 2 Ric. II., St. I, c. 5 (Scan. Mag.), 499 8 Ric, II., c. 4 (Judges), 503 12 Ric. II., c. 7 (Beggars and Vagrants), 488 12 Ric. II,, c. II (Scan. Mag.), 499 534 INDEX. STA TER Statute of 13 Ric. II., St. i, u. n (Frauds in cloth), 496 13 Ric. II., St. 3 (Retainers), 499 13 Ric. II. (Alien Priories), 489 — — 15 Ric. II., c. 5 (Uses), 498 15 Ric. II., c. 6 (Appropriations), 488 20 Ric. II., c. I (Retainers), 499 I Hen. IV., c. 7 (Retainers), 499 2 Hen. IV., c. 3 (Papal Pro- visions), 489 2 Hen. IV., t. 15 (Heretics), 489 5 Hen. IV. , c. 2 (Approvers), 498 5 Hen. IV. c. 5 (Mutilation), 502 5 Hen. IV., c. 13 (latten silver, &c.), 496 I Hen. v., c. 5 (of Additions), ,482 I Hen. v., c. 7 (Alien Priories), 489 — 3 Hen. v., St. 2, cc. 6, 7 (Com- — age), 496 — 9 Hen. v., St. I, c. II (Coinage), —496 — 2 Hen. VI. , c. II (Defective — Casks), 496 8 Hen. VI., cc. 22,23 (Woollen Exports), 496 9 Hen. VI., c. 4 (Names), 482 IS Hen. VI., I,. 5 (Perjury), 498 20 Hen. VI., c. 10 (Woollen Ex- ports), 496 33 Hen. VI., u. I (Servants), 502 33 Hen. VI., 1-. 5 (Silkwomen), SOI 3 Ed. IV., c. 4 (Imports), 497 4 Ed. IV. , c. I (Payment of work- men and Frauds in cloth), 496 4 Ed. IV., c. 2 (Smuggling), 496 8 Ed. IV., c. I (Frauds in Cloth), 496 8 Ed. IV., c. 2 (Retainers), 499 — — 12 Ed. IV., c. 3 (Smuggling), 496 . 3 Hen. VII. , c. 2 (Forcible Mar- riage), 477 — — 27 Hen. VIII., c. 10 (Uses), 498 ^7 & 8 Geo. IV., c. 28, s. 5 (Goods and Chattels of Felons), 428 Statutes,, note on the preambles to, 503 Stephen, King, effects of his war with Matilda, 109, 111-I15, 449 Stephenson, better roads than the Roman given to the world by, 418 Steward, of the Chamber, commissioned to enquire concerning forgeries of Ex- chequer Bills, 273, 479 Stews, the, in Soutliwark, 235 Stockton, the parson of the Church of, an outlaw for homicide, 307, 484 Stoning, forbidden by Consta:ntine as a barbarous punishment, 20, 428. Prac- tised in England, 51, 438 Street-ward. Sie Watch and Ward Stubbs, W., 'Select Charters' of, re- ferred to, 439, 450 Stuart, a, prisoner of war, and booty of robbers, 244, 474 ' Subsidy Roll,' referred to, 476 Succession, advantages of an undisputed, 419 Sudbury, Archbishop, made Chancellor, 331. Unpopularity of, as supposed advocate of a Poll-Tax, 331-332. Threatened with death by rebels under Wat Tyler, 332. Murder of, in imita- tion of a public execution for Treason, 336-337, 487-488 Suffolk, operations of a gang of brigands in, 271-272, 478-479 Suits, partiality of juries in, 128, 220, 451, 469. Sham proceedings in, 270, 478. Treachery of counsel in, 281- 282, 480 Summoners in ecclesiastical Courts, false personation of the, 238, 473. False personation to, 281-282, 480 Superstition, importance of, in the his- tory of Crime, 32-33. Character of, during the Roman period, 33-37, 431- 432. Wide diffusion of similar super- stitions, 37, 431-432. Effect of them upon Christianity, 35-41, 432-435- Reappearance of them after the mission of Augustine, 38, 433-435. Sacrilege not uncommon in an age of, 308-309, 484-485. Commonly associated with crime, 319. Little weakened in the fifteenth century, 343 Surnames, not fixed, below the rank of knight, in the fourteenth centuiy, 293- 294, 481-482 Surrey, the privilege of hunting through- out the county of, enjoyed by the citi- zens of London, 172, 459 Sussex, packing of a jury by the Sheriff of, 279, 479 Swain-mote, the, 469 TACITUS, referred to, 425, 432, 435, 436, 441, 445 Taxes, intimidation of collectors of, 258- 259, 477- Unpopularity of the Poll, 331-332, 487-488. Misconduct of the farmers of the, ib. ' Team, ' part of the formula expressing jurisdiction, 442 Temple, the, in London, burnt during Wat Tyler's rebellion, 334, 487-488 TertuUian, evidence of prevailing super- stitions from the writings of, 36, 432 INDEX. 535 TEU TOW Teutonic origin of our Criminal Law, 7, 45. 437 Teutonic Settlers, customs introduced by, 41, 214, 435-438. Tlie fine for ho- micide always a part of those cus- toms, 44, 435-436. Question whether they extirpated previous occupants of Southern Britain, 68-69. This ques- tion and the question whether they were the founders of our towns of little importance in the history of Crime, and why, 71, 72. Familiar with slavery in its worst form, 90, 445. Introduced the custom of wife-buying, 90-91, 445- 446 Teutonic Superstitions, not easily distin- guishable in early history, 37-38, 433 Teutonic Tribes, an aggregate of, or 'Gau,' compared with the shire, 72. Hatred of towns by, in early times, 73, 441. First acquisition of a coinage by, 74, 441. Acquisition of walls, bridges, and roads by, 75, 441. Changes in the land-tenure of, 76, 441-442. Life of, within the ' Mark,' 77, 442. Par- tition of land by, in England, 78-80 Theodore, Archbishop, the Book of . Penance, &c., attributed to, referred to, 434- 435. 437 Theodosian Code, sketch of Roman Cri- minal Law according to the, 13-20, 426-428. Social grades according to the, 20-24, 428-429. Torture and burning for witchcraft, according to the, 34, 432. Note on the use made of the, 426 Thieves, punishment of, according to ancient laws in England, 49-51. 437- 438. Trial of, 52, 438. Slain without form of trial if caught in the act, ib. Thorpe, William, Chief Justice of Eng- land, acceptance of bribes confessed by, 212-283, 4S0 Tiller of the soil, position of the, in the Roman provinces, 21, 428. In Eng- land before and after the Black Death, 323-329, 486-487 Timber, forcible cutting and carrying of, 247-253, 284, 475, 480 Tithes, share of, anciently allotted to the poor, 152. Absorbed by the Appro- priators of Churches, and consequent discontent, 341, 488-489. Origin of parish relief, in the distribution of, ib. Tithing, nature and responsibilities of the, 58-60, 438-440 Title, the earliest to land, 79-80, 248- 249. Of the villein to be free, 331 Title-deeds, private wars and abstraction of, 249, 475 ^ ' Tol,' a part of the formula indicatmg jurisdiction, 442 Tonsure, when held necessary for Benefit of Clergy, 300, 483 Tokens, Statutes against giving, long ineffectual, 396-397, 499 Torture, use of, by the Romans, 13-14, 16, 426-427. By licence of the King of England, and by order in Council, 17, 427. Restricted by Roman Law, ib. Members of Colonial Courts ex- empted from, 22, 429. Of the press, &c,, for the accused who stood mute, 210-211, 387, 499. By gaolers to make prisoners become approvers, 287- 288, 481. How far legal in England, 387, 498-499 Tower of London, imprisonment of a coiner in, 267,478. Besieged by Wat Tyler's men, and the Archbishop of Canterbury dragged from it, and mur- dered, 336-337, 477-478. Drawing from, to the place of execution, 493. Miscellaneous Records of the, referred to, 465 Towns, numerous in Roman Britain, 24, 429. Power of, to spread civilisation, in abeyance after the Teutonic Con- quest of South Britain, 46: Guilds in, before the Nonnan Conquest, 64, 440. Importance of, in the history of Crime, 66. Disputed origin of, in England, 66-67. The question whether they are of Roman or Teutonic origin unim- portant, and why, 67-74. Roman names of, in England, 67-70. Teu- tonic names of, in England, 70-71. Relation of, to the shire, 72-73. Ha- tred of, by the primitive Teutons, 73, 441. Private jurisdictions in, before the Conquest, 83, 442-443. Municipal jurisdictions in, before the Conquest, 83, 443. Reeve of (port-gerefa), 84, 443-444. Not all in the same condi- tion before the Conquest, 88. Good influences of, weakened for a time by the Norman Conquest, 106. Respon- sibility of hosts in, 94, 131, 218, 335, 446, 469, 473. Had little power for good, even in the twelfth century, 1 39. Desire independent jurisdiction and compurgation, 140, 175, 459. Law- lessness and dishonesty in, in the twelfth century, 141-142, 456. Their rise in the thirteenth and fourteenth centuries, 170, 459. Become quit of the murder-fine, 171-172, 459. Ob- tain other privileges, 172-173, 459- 461. Legal recognition of guilds in, 173-174,459-461. Recover after the Conquest sooner than the rural dis- tricts, 174-175. Are in danger of re- verting to the pre-Norman barbarism, 1 75-1 76. Begin, to be represented in 536 INDEX. TRA the legislative body, and how, 176- 1 78, 462. First effects of their growing influence in England, 178-179, 462. Proportion of town to country popula- tion in the reign of Edward II., 179- 180, 462-463. Relative magnitude of English, in the reign of Edward II., 181, 462-463. Persistence of the spirit of partisanship in, 183. Conse- quent attempt to secure monopolies in, 184. Effect of the right of private war upon, 246-247, 475. Influence of, upon landholders, 264. Growth of, before the Black Death, 316. Relative power of, increased by the Black Death, 318. Fugitive slaves or villeins in, i74-i75> 324 326, 376-377, 461, 486, 497-498. Manufacture of paper and invention of printing due to the commercial spirit in, 363-366, 369, 494-496. Prejudice of knights against, and frauds in, 371-373, 496. All mental culture due to the, 373-376. Changes in the character of the trade-guilds in, 377- 378, 497-498. Early relations of capital and labour in, 378-380, 497-498. The social or religious guilds in, 380-383, 498. Charges of ' Scandalum Magna- tum ' connected with the growth of, 398-400, 499. Growth of, favourable to women, 411-412. Affected by the lawlessness of the country, 412-413, 501-502. The greatness of England due to the, 420-421 Trailbaston, Justices of, 221, 469-470. Meaning of, 222. Justices of the Peace represent the Justices of, 222-223, 4^9- 470 Transportation, or 'deportatio,' aRoman punishment, 16, 427. See Abjuration Travelling, facilities for, under the Em- pire, 25-26, 429-430. Difficulties of, in the Middle Ages, 241-242, 473-474 Treason, all men rendered equal in the eye of the Roman law by an accusation of, 14, 426. Statute of Treasons, and previous uncertainty of the law with respect to, 223-224, 470. Illustration of the earlier views of, from the cases of Gavaston and the Despensers, 224- 225, 470. The punishment for, and the reasons by which it was justified, 225-226, 470-471. Relation of, to the right of deposing a sovereign, 223- 224, 226-227, 471.. Charges of, com- monly made from corrupt motives, 228-229, 471. Non-appearance and outlawry after indictment for, equivalent to conviction, 347, 493. Charges of, associated with charges of heresy, 350, 352, 490-493 ; and with charges of witchcraft, 360-361,494. Fraudulent USU use of the Great Seal punished as, 368, 495. Conveyances to avoid for- feiture for, 384-385, 498. Brutalising effects of the punishment for, 421. See Attainder Treasurer, the Lord, commissioned to en- quire concerning forgeries of Exchequer Bills, 273, 479 Treasury of ReceijDt, records of the, re- ferred to, 466 Treasury, the Royal, robbed to the value of ;^ioo,ooo, 199. Proceed- ings against, and convictioij of. Monks of Westminster for robbing, 199-202, 465-467 Trent, conduct of a parson of the Church of, 307, 484 Tresillian, Chief Justice, severity attri- buted to, 337 Trials, Pre-Norman (Ordeal and Compur- gation), 52-57, 438. Origin of Trial by Jury, 56-57, 120-129, 206-208, 438,450-451467-468. By battle in- troduced by the Normans, loo-ioi, 448. By battle according to Glan- ville, 124-125, 451. By battle inter- rupted, 204-206, 467. Proceedings in civil and criminal, in the fifteenth cen- tury, 386, 498. By battle in cases of Treason, how conducted, 389-392, 499. See Appeal, Indictment, Judges, Jury, Mute, Witnesses ' Trinoda necessitas,' 75, 441 Trokelowe, the ' Annales ' of, referred to, 470 Tun, the, in Cornhill, 236, 473 Turn, the Sheriff's, intimidation at, 258, 477 Tyler, Rebellion of Wat, remote causes- of, 322-329, 486-487. Beginnings of, 329-331, 387. Final outbreak of, ex- cited by a poll-tax, 331-332. Aims of the actors in, 332-333. Bloodshed and destruction in London during, 334- 335. Part taken by the London ap- prentices in, 332, 335. Imitation of public executions during, 336-337, 487-488. Immediate effects of, 337- 338. Compared with the designs attri- buted to Oldcastle, 351 Tyriensis, Willermus, referred to, 458 UNION, good effect of the, with Scotland, 246 Uses, first introduced with the object of evading the law, 384, 498. Legally recognised, ib. Effects of the doctrine of, in modern times, 385 Usury, the inquest of, in the time of Glanville, 127-128, 451. The Jews allowed to practise, 185-187, 463. Sufferings of the clergy from, 188-190, INDEX. S37 UTF WEL 198, 463, 465. Practised by the Caur- sins, 192, 464-465. The Jews for- bidden to practise, 194, 464 ' Utfangentheof,' referred to, 83 VAGRANTS, early instructions to sheriifs concerning, 131, 450-45 1 Statute of 1388 against, 341, 488 ' Vascon Rolls,' referred to, 462 Verdict. See Jury ' Vicarius Britanniarum,' 26, 429, 431 Vicars, offences committed by, 248, 302- 30^, 475, 483. Provision for, after ap- propriations, 340-342, 488 'View of Frank-pledge,' 437. See Peace- Pledge Villas, numerous in Roman Britain, 26, 429-430. Description of, 26-28,429- 430 Villeins, regardant compared with the ' coloni,' 21,428. General description of all Englishmen except the highest classes as, in the twelfth century, 139, 454. Sketch of origin and early history of, 324-326, 486. Regardant and in gross how distinguished, 326, 330. Value of, ib., 486-487. Position of, in the labour-market, 326-327. How affected by the Statute of Labourers, 327. Free labourers increased by manu- mission of, 327-328, 487. Refuse to do the bidding of their lords in the reign of Richard II., 329-330, 487. Refer to Domesday in proof of their freedom, ib. Legal aspect of their case, 330-331. Freemen might legally be- come,ib., 487. Rebellion of, 331-337, 487-488. Gradual extinction of the class of, and change in the meaning of their name, 375-380, 418 Virgins, sanctity attributed to, and sacri- fice of, 1 1 ■\ T fAGER of Battle. See Battle Wager of Law. See Law Wages, regulation of, by the Statute of Labourers, 323, 486. Of manufac- turers paid in early times by the pro- duce of labour, 379, 497-498 Waiving of a woman, common in cases of unsupported appeal, 290-291,481 Wales, the fine for homicide in, 42, 436 Walsingham, Ai-med Retainers at the sessions of Oyer and Terminer at, 413, 502 Walsingham's ' Historia Anglicana,' re- ferred to, 487 Wapentake, customs of the, how related to trial by jury, 120-122,450 War, effects of, upon the Romans and the peoples they conquered, 8-9. In- crease of crimes of violence through the warlike spirit, 66. War, the normal condition of society after the Teutonic invasion, 79-80. The right of private, the foundation of Teutonic and other barbarous laws, 80. Ill effects of the right of private, 81. The war-like spirit stimulated by the success of the Conqueror and by the feudal aspira- tions of the Church, 106. Effects of the warlike spirit shown by the crimes on the Marches, 246, 475. Effect of the right of private, in causing brigandage forcible entries, &c. , in the fourteenth centuiy, 246-253, 475. Ease with which pardons were obtained in time of, 294-296, 482. Churches and rec- lories seized in private, 304, 484. Private, contrasted with the occupations of townsmen, 363, 370. Effects of civil, 376,415-417, 502-503. Private, con- nected with Trial by Battle, 392-393. Unsuccessful attempt to avert the horrors of, by Richard II., 393-394, 499. Relative gains of sovereigns and people in, ib. Warbeck, Perkin, prototypes of, in ear- lier times, 408-409, 500-501 Warde,Thomas,personatorof Richard II., 409, 500-501 Wardrobe, Bills of the office of the, forged, 273-274, 479 Wards of the City of London, juries of the, after the robbery at the Treasury, 199, 466 Warwick, the Earl of, not the first king- maker, 81-82 Warwick, population of, under Edward II., 181, 462-463. The Prior and a monk of St. Sepulchre's, accused of homicide, 307, 484 Watch and Ward, upon the highways and at the gates, 94, 218-220, 446, 469 Water, a greater portion of England under, in the fourteenth century than in the nineteenth, 241-242, 473 Water, ordeal by. See Ordeal Watt, beginnings and effects of the inven- tions of^ 418 Wax, used to preserve the body of Ed- ward I., 240, 473 Weavers, guilds of, when first mentioned, 64. Numerous guilds of, in England in the twelfth century, 178, 462. In- crease of female, in London, in the fifteenth century, 411-412 Webster, gradual change in the meaning of the word, 255, 476 Weights and measures. See False Weights, &c. Wells, population of, under Edward II., 181, 462-463 538 INDEX WER ' Wer,' effect of the, on the character of the people, 290. Might be paid in cattle in the reign of the Conqueror, 441. See Fines, Homicide Westminster, blows exchanged at, by the clergy of the two provinces, 148-149, 456. The Abbot and monks of, in debt to the Jews, 189, 463. The Abbot of, suspected, and some monks of, con- victed of robbing the Royal Treasury, 198-202, 466-467. The first, Statute of, shows perjuries of jurors, 220, 469. Lepers on the highway from London to, in the fourteenth century, 238-239, 473. Waxing the body of Edward I., . in the Abbey of, 240, 473. The road impassable near, ib. I^awsuits respect- ing the liability of the Abbot, &c. of, to repair roads, ib., 280, 480 Westminster Hall, courts interrupted by a brawl in, 412, 501-502 Westminster, Matthew of, references to the ' Flores Historianmi ' attributed to, 465 Wife-buying. See Women Wilkins's ' Concilia,' referred to, 448,463, 465 William the Conqueror, not the intro- ducer of brutal punishments into Eng- land, 97. Applies old punishments to new uses, 97. His measures for the security of himself and his followers, 98, 447, 454. Forbids the export of slaves, 99, 445, 486. Resists Papal encroachments, 104, 449. Divides ec- clesiastical from secular jurisdiction, ib. His policy of unification, 106-107. His policy adopted by his successors, 1 1 3- 1 14. Importance of the laws of, with respect to Compurgation, 120, I2I-I23, 450. Confirms the ancient privileges of London, 171, 459. His policy afterwards reconciled with the representative principle, 178. Pay- ments, how made in the time of, 441 William II., forest-laws under, 97. His roughness unredeemed by higher aims, no Winchester, history of the name of, 67. Early importance of, 69. Not men- tioned in Domesday Book, 83. Guild of weavers at, 178, 462. Population of, under Edward II., 181, 462-463. Statute of, 220, 469. Charges against a bishop of, 338-339, 488. Charter to, 459 Witchcraft, wide-spread belief in, 33-41, 431-435. Roman belief in, and punish- ments for, 33-35, 432. Effects upon Christianity of the belief in, 35-41, 432-435. Belief of Sir Matthew Hale in, 34. Penances for the practice of, 38-40, 434-435. Associated with WOM heresy in the minds of the orthodox, 352, 353, 35s, 493- Prominence of, from the fifteenth to the seventeenth centuries, 352. Search for persons suspected of, in England, under Henry IV. and Henry VI., 353, 355, 493- 494. Execution of the Maid of Orleans, for, 354-355, 493-494- Charge of, used as a political engine, 356. Trial, condemnation, and sentence of a Duchess of Gloucester and alleged ac- complices for, 356-358, 494. Duchess of Bedford suspected of, 358-360, 494. Queen Elizabeth, wife of Edward I V. , suspected of, ib. Thomas Burdett ac- cused of, 360-361, 494. Imputed to Edward IV., according to the Bill against the Duke of Clarence, 361- 362, 494. Imputed to Jane Shore, 362, 494. Prominence of the belief in, at the time when printing was in- troduced, and attempt to explain the contrast, 363 et seq. Persistence of the belief in, 420 Wifena-gemot, jurisdiction of, referred to, 84, 88, 444. Constitution of, 176-177 Wite-Jieow (insolvent criminal), 89-90, 445 Witnesses, testimony of two at least re- quired in capital offences, according to Roman Law, 17, 427. To give evidence on oath, ib.. Common repvite in the neighbourhood a substitute for, in ancient England, 124. The jury or recognitors the only, in early times, 126. First step towards the examina- tion of, in court, 206-207, 467-468. Not known to have been distinguished from jurors, even in civil causes, before the reign of Henry VI., 208. How far distinguished from jurors in the reign of Heni-y VI., 386, 498. See Approvers, Compurgation, Indictment, Women, position of, under the Roman Empire, 29, 430. The most atrocious punishments reserved for them and slaves, according to ancient laws in England, 50-51, 437-438. Thrown down a precipice, ib. Burnt by other women, ib. Drowned, ib. 82. Bought for wives, 90-91, 445-446. Improver ment in the condition of, through the influence of the Church, 90-93. Cus- tom of buying for wives not extinct at the time of the Conquest, 99-I00. Condition of, and crimes by, in the fourteenth cen,tury, 255-256, 476-477. Waiving of, 290-29 1, 481. Want of sympathy for, in the age of chivalry, 290-292. Treatment and condition of, in the fifteenth century, 411, 501, INDEX. 539 woo YOR Growth of towns favourable to, 41 1- 412 Woodville, Elizabeth, wife of Edward IV., 358-359. Suspected of witch- craft, 359-360, 494 Wool, export of, from England, and its importance, 179, 241, 462 Worcester, name given by the city of, to a shire, 72. Population of, under Edward II., 181, 462-463. A right forcibly asserted by the township of, 252-253, 475 Worcester, Florence of, referred to, 447 Worcestershire, a jury-panel furnished by the Sheriff of, destroyed, and a forged panel substituted, 280-28 1, 480 Writing, cultivation of the art of, con- nected with the manufacture of paper, 366, 369, 495. Interchange of uses between sealing, stamping, or printing, and, 367, 495. Forgery not increased by diffusion of the art of, 368 Writs, forgery of, 270, 478 Wrongs, appeals as a remedy for private, and indictments for public, 289-290 Wycliffe, the views held by, with respect to church-reform, widely diffused before the Black Death, 298. The writings of, illustrated by the records of crime, 306. A young man at the time of the Black Death, 309. Effects of the plague discernible in the writings of, 310. Supported by John, Duke of Lancaster, 334. Said to have thrown pearls before swine in translating the Bible, 338, 487-488 Wykeham, William of. Bishop of Win- chester, offices held by, 338, 488. Charged with peculation and forgery, 339, 488. Excepted from a general pardon of felonies, 340, 488. Par- doned, ib. YARMOUTPI, Great, Population of, under Edward II., l8l, 462-463. A dependency of the Cinque Ports, 234. A ship of, destroyed by the Cinque Ports men, 234, 472. Act of private war by the men of, 246-247, 475. Fraudu- lent burial by an inhabitant of, 296, 482. Charter to, 460 Year and a day. Appeals need not be made before the expiration of a, 296, 482 Year and a day, the king's, in cases of felony or treason, 302 Year Books, state of education inferred from the, 312 — — References to the, 483, 485, 499 York, history of the name of, 68, 440. Name given to a shire by the city of, 72. Claim of the Archbishop of, to the Primacy of England, 148-149, 456. Massacre of Jews at, 161-162, 457. Guild of weavers at, 178, 462. Population of, imder Edward II., 181, 462-463. Rescue of prisoners by townsmen of, 257, 477. Suspicious deaths of approvers in the gaol of the castle of, 288, 481. Yorkshire, population of, under Edward II., 182, 462-463. Number of cases of felonious homicide in, in 1348, 254, 476 LONDON : PRINTED BY SPOTTISWOODE AND CO., NEW-STREET SQUARE AND PARUAMENT STREET * i.7 ^m i ■ ■: } 3 1 )