Changes in Laws.

The Statute Law and the Common Law.

Lord Chancellor Westbury, in the House of Peers, in the Session of 1863, made the following statement with reference to the revision and expurgation of the Statute Law, from the earliest commencement of our legislation down to the beginning of the 17th century—the legislation, in fact, of about 500 years.

The Laws are divided into Written and Unwritten law. The written is the statute law, and the decision of the judges constitutes the unwritten law of the land. The Statute Law[5] is in a great measure supplemental to the Common Law, and a knowledge of the common is necessary in order to enable a man to read and understand the statute law. The Common Law is only traditionary—it is supposed to reside in the breasts of the judges; accordingly, when it is necessary to ascertain it in the House of Lords, their lordships require the attendance of the judges, who are called upon to declare what that law is. In like manner, in the great court of equity to which belongs that large portion of natural justice which is repudiated by the common law, the judges have the power of determining what constitutes the rudiments of that law. This is, undoubtedly, a dangerous and a difficult trust. It is little less than legislative power, because the sources of common law are of the most varied character. It is probably derived in a great measure from customs and usages, recorded only in the memory of man; it is partly derived, no doubt, from old rules embodied in acts of which no record now exists. It is partly made up of relics of the old Roman jurisprudence which remained so long throughout the land; and it is partly the result of customs and maxims, handed down from one generation to another. The sources were so varied in ancient times that the custom of declaring the law also varied. In the old time it was impossible to know what the law was. The judges were not only legislators, but the worst of legislators—legislators ex post facto. Accordingly, at an early period, it became necessary for the protection of liberty, in order to get some kind of approach to uniformity, constancy, and regularity in the law, that the grounds and reasons of the judges’ decisions should be given. At first an attempt was made to do so by entering the reasons for the judgments in the rolls of the court; and our court rolls, preserved from the time of Richard I., contain repeatedly the reasons for the decisions and sentences. At the latter end of the reign of Edward II., or in the beginning of the reign of Edward III., the practice of reporting the decisions of the judges began, and from that period down we have a series of judicial reports of those decisions. That was a great security for the people, because it was an approach to certainty in the law. The origin and reason of it was a distinctive peculiarity in the English mind—namely, the love of precedent, a love of appealing to precedent rather than indulging in abstract reasoning. This was the only mode in which the law was recorded, and the only mode in which it became known. These reports were kept for a considerable period of time under the superintendence of the judges themselves, and great care was taken in sifting and ascertaining the grounds of the decision. The evil was, therefore, comparatively little; but in course of time, as the reports multiplied and as the personal superintendence and care of the judges were withdrawn, great complaints began to arise; and so much inconvenience was felt that, as early as the time of Lord Bacon, it became a subject of general dissatisfaction which attracted his attention, and led to his compiling and publishing his celebrated book for the amendment of the law of England. The Lord Chancellor, in his revision and expurgation, proposed to do little, if anything at all, more than revive the proposal of Bacon. “The wisdom and excellence of that proposal has been admitted from age to age; and the fact that nothing has been done to give effect to it we must attribute to the singular inertia that characterized the English Legislature.”

Curiosities of the Statute Law.[6]

Most people have a confused idea that as new laws are made old ones are repealed; and that the Statute-Book, bulky as it is, contains nothing but what every Englishman is bound to know and observe. Such, however, is not the case: for the old laws, instead of being cleared away to admit the new ones, have been allowed to remain, so that nine-tenths of this Statute-Law is really not law at all; and if the Statute-Book were freed from the enactments which have become obsolete, or ceased to be in force without being specifically repealed, it would be reduced from forty to four or five volumes. Enough of confusion, prolixity, and repetition would still remain within this compass to exercise the wits and fill the pockets of the lawyers; but the perusal of it would no longer occupy a lifetime, and this excuse for our ignorance of it would be very much weakened.

To show the necessity of the revision of our Statute-Book, we shall quote from the schedule of the Bill presented by the Lord Chancellor to the House of Lords in the Session of 1863, a few samples of useless or inoperative enactments, to show how curiously the history of a bygone age is reflected in its legislation.

Here in the midst of provisions confirming or modifying feudal privileges and liabilities is, “The Sentence of Curse given by the Bishops against the Breakers of the Charters.” No less out of place in the Statute-book, according to modern notions, is “The Award made between the King and his Commons at Kenilworth.” Next, we light upon enactments prescribing “The Remedy if a Distress be impounded in a Castle or Fortress,” and prohibiting the custom of distraining upon one foreigner for the debt of another. By the famous Statute Circumspectè Agatis laymen are restrained from laying violent hands on a clerk, while other Acts warn “men of religion” against aggression on their lay neighbours. Then we come to a whole series of sumptuary laws, and laws for the encouragement or discipline of particular trades. Bread and ale are placed under special protection; butchers and cooks are forbidden to buy flesh of Jews, and sell the same to Christians; exporters of wool are to give surety to import silver in return; iron is not to be exported at all; “no shoemaker shall be a tanner, nor any tanner a shoemaker;” yet (by a later Statute) “shoemakers may tan leather till the next Parliament;” all merchandises of a certain kind are to be carried to Calais; gowns and mantles are to be worn of a specified length; salmon, herring, and eels are to be packed in a specified manner; long-bows are not to cost more than a specified sum; calves are not to be killed at the will of their owners; the “breade of horsys” is subjected to State control; and “the stuffynge of feather-bedds” does not escape the vigilance of Parliament. Most of these Acts, and a very large per-centage of all those which are proposed for repeal, have reference to a state of society which has little in common with our own. Instead of enacting that “every one may put his child to school,” we debate now-a-days as to whether he should not be compelled to do so; and, instead of fixing the rate of workmen’s wages by Act of Parliament, we tolerate a liberty of combination which sometimes enables them to exact more than the market value of their labour. If the habit of “telling slanderous Lyes of the Great Men of the Realm” is not quite extinct, it is no longer checked by penalties, and we are content to leave “fonde and fantasticale Prophesies” to refute themselves.

The expurgation by which it was proposed to rid the Statute-book of this lumber was originated some 250 years ago, by Bacon, as stated in pp. 104-105; but the statutes which he marked, before the Restoration or the Revolution, before the Union of Scotland or Ireland, before the abolition of the feudal tenures, before the passing of the Habeas Corpus Act, still encumber the Statute-book; and the plain, sensible, and unanswerable suggestions which he threw out for the heroic work of consolidating the statutes have remained without effect. Each succeeding generation has employed itself in adding something more to that mass of evil which the great philosopher felt and denounced. If the mind of Bacon was shocked at the tangled labyrinth of our Statute Law in the reign of James I., if Sir Matthew Hale occupied his mind with the same subject in the reign of Charles II., what would they have said could they have foreseen the 10,000 statutes passed in the reign of George III., and the Ossa which the industry of the last forty-five years has piled upon the shoulders of that mighty Pelion?

Secret of Success at the Bar.

Sir Thomas Buxton relates that he once asked Sir James Scarlett what was the secret of his pre-eminent success as an advocate. He replied that he took care to press home the one principal point of the case, without paying much attention to the others. He also said that he knew the secret of being short. “I find,” said he, “that when I exceed half an hour I am always doing mischief to my client; if I drive into the heads of the jury important matter, I drive out matter more important that I had previously lodged there.”

Queen’s Serjeants, Queen’s Counsel, and Serjeants-at-Law.

To remove certain doubts of very recent growth (cast upon a matter previously deemed plain enough), the following statement is the result of a very careful inquiry:—Queen’s serjeants are sworn to “serve and counsel the Queen and duly to minister the Queen’s affairs, and sue the Queen’s process after the course of the law and after their cunning, and they are to take no fee of any one against the Queen.” Queen’s counsel, as distinguished from Queen’s Serjeants, are appointed by Letters Patent under the Great Seal, giving them precedence “in our courts as elsewhere.” The oath administered to Queen’s counsel is precisely the same as the oath administered to Queen’s serjeants. Next after Queen’s counsel come serjeants-at-law, who, on taking their degree, swear that they shall “serve the Queen’s people and truly counsel them that retain them, after their cunning.” Sometimes a serjeant-at-law applies for a “Patent of Precedence,” which gives him precedence next after the last of the Queen’s counsel previously appointed. No oath is administered on the grant of a patent of precedence, as it implies no special service or duty to the Crown.

Do not make your Son an Attorney.

Apart from the heavy expenses which must, even under the most favourable circumstances, attend the introduction of a youth into the legal profession, the fact must never be lost sight of that the examination which articled clerks are now called upon to pass before they can be admitted is of such a rigorous nature that perhaps not one in ten of the established practising attorneys could undergo the ordeal. Then, if we consider that the legal profession is at the present moment vastly overstocked, and reflect upon the fact of numbers of clever young men, who finding it impossible to beat out a connexion for themselves, either make for one of the colonies, or settle down at home in managing clerkships, at salaries scarcely equal to the remuneration paid to skilled mechanics, there is quite enough to make us hesitate before placing our sons in law offices. Nor must the fact be overlooked, that the tendency of our legislation has been, and will continue to be, to simplify legal procedure as much as possible; to lower the scale of fees payable to attorneys and solicitors, and even to dispense in many instances, with the necessity for employing professional men at all.—S. Warren, Q.C.

Appellate Jurisdiction of the House of Lords.

The proper constitution of the Supreme Court of Appeal justifies the utmost solicitude of the legislature and the country. The difficulties surrounding its reconstruction were found too great to admit of solution during the session of 1856, unexpectedly complicated as they were by the creation of that very distinguished judge, Baron Parke, a peer for life only, as Lord Wensleydale. The greatest constitutional lawyers in the House of Lords, supported by a considerable majority of peers, declared that the Crown had no power to create a peer for life only, with a right to sit and vote in that house; that such an act was illegal, and that the very essence of the British peerage consisted in its hereditary character. Issuing out of these discussions a Bill for reconstructing the appellate jurisdiction was sent down from the Lords to the Commons, but so late in the session that they declined then to entertain it. Whatever may be the ultimate fate of this measure, it is still practicable, even without adopting its special machinery, to preserve the appellate jurisdiction of the House of Lords—itself an object of the highest importance—by providing for more assistance from the legal and equitable judicial force of the country. In the meantime a well-earned hereditary peerage was conferred on Lord Wensleydale, under which he took his seat before the session closed.—Blackstone’s Commentaries, edited by Warren.

Payment of an Advocate.

In 1863, Chief Justice Erle gave judgment in the case of Kennedy v. Broun, which involved the right of the plaintiff, a barrister, to recover the sum of 20,000l., alleged to have been promised by Mrs. Broun, then Mrs. Swinfen, for professional services rendered in the matter of the Swinfen estates; the trial at Warwick having been compromised by Lord Chelmsford, then Sir Frederick Thesiger. An action was brought by Mr. Kennedy to recover the 20,000l. in question, and a verdict was given in his favour. A rule was obtained to set aside that verdict and enter it for the defendant. The Chief Justice, in a most elaborate judgment, said that the relation of the parties, as advocate and client, incapacitated the latter from making any promise of remuneration which could be recovered as a debt. The payment to an advocate was as honorarium not merces—and the opinion of all the judges, from the days of Justinian to the present time, supported that view. The rule for a new trial to enter the verdict for the defendants was therefore absolute. This of course quashed Mr. Kennedy’s claim.

Utter-Barristers.

“The term ‘Utter-Barrister’ occurs for the first time in the reign of Henry VIII. It is mentioned in the ‘Orders and Customs’ of the Middle Temple, where it is applied to one who, having continued in the house for five or six years, and profited in the study of the law, has been called by the benchers ‘to plead, argue, and dispute some doubtful matter before certain of the benchers,’ which ’manner of argument or disputations is called motyng; and this making of Utter-Barristers is as a preferment or degree given him for his learning.’”

Fifty years ago no junior barrister presumed to carry a bag in the Court of Chancery, unless one had been presented to him by the King’s counsel, who, when a junior was advancing in practice, took an opportunity of complimenting him on his increase of business, and giving him his own bag to carry home his papers. It was then a distinction to carry a bag, and a proof that a junior was rising in his own profession.

What was Special Pleading?

From a period of very remote antiquity down to the passing of the Common Law Procedure Act, 1852, the pleadings in our Law Courts were of a highly artificial character, and had been elaborated, by the care of judges and practitioners during many successive centuries, into a regular system or science, called pleading, or more properly, special pleading, which constituted a distinct branch of the Law, with treatises and professors of its own. It was a system highly rated by our ancient lawyers, and had at least the merit of developing the point in controversy with the severest precision. But its strictness and subtlety were a frequent subject of complaint; and one object of the Common Law Procedure Act, 1852, was to relax and simplify its rules. Whether the effect of this will be to impair its value or not in other respects, experience alone can decide.—Stephen’s Commentaries, note.

Lord Campbell studied, at Lincoln’s Inn, the mysteries of special pleading, under the guidance of Mr. Tidd, through whom he traced his legal pedigree up to the celebrated Tom Warren, father of this wondrous art. Tom Warren begat Serjeant Runnington, Serjeant Runnington begat Tidd, Tidd begat Campbell, and Campbell begat Dundas and Vaughan Williams. “Tidd,” writes his grateful pupil, “lived to see four sons sitting together in the House of Lords—Lord Lyndhurst, Lord Denman, Lord Cottenham, and Lord Campbell. To the unspeakable advantage of having been three years his pupil, I chiefly ascribe my success at the bar.”

What is Evidence?

Mr. Stephen, in his able Treatise on the Criminal Law of England, gives the follow definitions of Evidence:

All the facts with which we are acquainted, visible or invisible, internal or external, are connected together in a vast series of sequences which we call cause and effect; and the constitution of things is such, that men are able to infer from one fact the existence, either past or future, of other facts. For instance, we infer from a footmark on soft ground that a foot has been impressed upon it. From the fact that a man is planting his foot on soft ground, we infer that if he completes that motion a footmark will appear. Any specific fact, or set of facts, employed for the purpose of inferring therefrom the existence of any other fact, is said to be evidence of the fact. Suppose the question is whether John Smith is living or dead: A says, “I knew John Smith, and I saw him die.” B says, “I knew John Smith. I saw him in bed; he looked very ill. I shortly afterwards heard he was dead, and saw a funeral procession, which I attended, and which every one said was his funeral, leave his house and go to the churchyard, where I saw a coffin buried with his name on it.” C says, “Z told me that he heard from X that John Smith was dead.” D says, “I had a dream that John Smith was dead.” Each of these facts, if used for the purpose of supporting the inference that John Smith was really dead, would be evidence of his death. The assertions of A and B would, under ordinary circumstances, be convincing; that of C far from satisfactory, and that of D altogether idle, except to a very superstitious person. This would be usually expressed by saying that the assertions of A and B would be good evidence, that of C weak evidence, and that of D no evidence at all of the fact of the death. But this is not quite a correct way of speaking; whether one fact is evidence of another, depends on the way in which it is used. If people usually believed in dreams, the assertion that a man had dreamt of John Smith’s death would be evidence of his death. Whether or not it would be wise to allow it to be evidence of his death, would depend on the further question, whether in point of fact the practice of inferring the truth of the dream from the fact of its occurrence, usually produced true belief.

It would, unquestionably, aid the ends of justice if the real nature of evidence were better understood; which can only be assisted by the right use of reason.

What is Trial?

The decision of fact, which constitutes in every civilized country the chief business of courts of justice; for experience will abundantly show that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted.

About twenty days in the year, says Blackstone, are sufficient in Westminster Hall to settle, upon solemn argument, every demurrer or point of law that arises throughout the nation; but two months are annually spent in deciding the truth of facts before six distinct tribunals, exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits. (3 Bl. Com. 320.) The state of things in our own days is substantially the same.—Stephen’s Commentaries.

Trial by Jury.

In England, when the aspect of the French Revolution divided our public men into factions—in the evil time, when statesmen had talked complacently “of a vigour beyond the law,” when judges had tortured free speech into sedition, and when open violence and secret art were sapping the liberties we prize most dearly, English juries, with the approbation of the country, interposed frequently against political wrong, and vindicated the good cause that elsewhere had been abandoned. As for the loyalty and good sense of the nation as a whole, the mode in which it obeyed the Government attests this in a remarkable way; and though, of course, the Revolution in France stirred up some elements of disorder here, they were as nothing among the great mass of Englishmen. This truth is urged by Mr. Massey with more force than by any other historian, and it deserves to be put prominently forward, as several writers have asserted the contrary. In his very instructive summary of the state of English opinion at this period, he says:

“Because freedom had been abused at Paris, the liberties of Englishmen were assailed. The press was put under restraint; legions of spies were let loose upon the country, and no man could speak his mind in safety, or even do the most harmless act without fear of question. It is no wonder that the old English feeling was aroused, and that the State trials of 1794 were regarded with an intensity of interest which had not been equalled since that of the Seven Bishops. The public safety at that time depended on the trial by jury, and men were satisfied that their liberties were safe when it appeared that the great institution which had so often sustained them was still sound and unshaken.... Happily the prosecutions failed, and from their failure was derived that security which but for these trials would not have been ascertained.”—Times review of Massey’s History of England.

That sound and experienced judge, Sir John Coleridge, in a lecture delivered by him at the Athenæum, Exeter, stated that

He had been a judge for an unusually long period, and he should ever regard with admiration the manner in which juries discharged their duties. Again and again he had reason to marvel at their patience, and again and again he had observed questions put by a jury which had been omitted by counsel and judge, the answer to which had thrown a light that had guided them to the truth of the whole matter. He had often thought if he had the appointment of the magistrates in the country, that he would appoint those gentlemen who had served on petty juries on the Crown side for two assizes at least; for he was sure that a more practical knowledge of criminal law was learnt in that way than could be acquired by several months of careful reading. One thing should always be remembered, that stupid verdicts were no arguments against the institution, for no human institution, however wise in itself, could be expected to work perfectly. Let them improve their jurymen by raising the character of their national education; let them introduce into their panels all classes who by law were liable to serve; and when they had done that, and not till then, if they found it to fail, let them condemn the institution. They lived under a law which, though far from perfect, was framed in a wise and just spirit. They could not possibly overrate the blessing which they possessed, yet it was so much a matter of course that they were apt to think as little of it as they did of the sun that shone upon them from Heaven.

Attendance of Jurors.

The law on this subject has been thus concisely explained by Mr. Under-Sheriff Burchell. At the present period, persons who claim to be excused from attending as jurors should get their names removed from the jury-list. In July, within the first week, the Clerk of the Peace is to issue his warrant to the high constable for the overseers to prepare and make out a list of persons qualified as jurors. For three weeks in September the list is to be exhibited on the doors of churches and chapels, with a notification where objections are to be heard. Within the last seven days of September the justices are to hold a petty sessions to hear objections. If persons having exemptions do not attend to the subject, they may be returned and be liable to serve until the list is corrected in the September following. Some complaints are made of persons being returned by parish officers who had either removed or been dead for years. The law as stated prevails throughout the counties of England.

The Law of Libel.

It would be useless to attempt to define, within our limit, the principles of the Law of Libel—it would be attended with fruitless results; but we may be permitted to give such an outline of the subject as may be useful for reflection and research, if not for immediate practice. Now that the old saying, “The greater truth the greater libel,” is no longer applicable even to indictments for defamation, the popular idea of what is and what is not actionable is correct, so far as it goes. It is now generally understood that a false and malicious attack upon another man’s character is in all cases illegal; that a somewhat less offensive imputation than would support an action for mere words will render its author liable in damages if it be conveyed in writing, but that the law deems all statements of this kind to be justifiable which can be shown to be true. For the ordinary intercourse of life these rules and cautions are sufficient. No one can speak ill of his neighbour with impunity, unless he is prepared to make good his words to the letter; or, at least, to prove that they were spoken without malice or on a lawful occasion. With regard to the Press, it has been proclaimed again and again from the judicial Bench, that “fair comments” in a journal or periodical are not within the Law of Libel; but, then, what is to be the test of “fairness”? It is quite possible that a journalist’s comments may be made bonâ fide and out of a regard for the public welfare, and yet may be incapable in their very nature of legal proof. In the case of Campbell v. Spottiswoode, the former obtained a verdict against the printer of the Saturday Review for an alleged calumny against himself as editor and part-proprietor of the British Standard and Ensign. The defendant’s counsel relied at the trial, and in his argument before the Court of Queen’s Bench, on the “general privilege” of all who discuss public questions without actual malice. The Lord Chief Justice and the Court decided against him, on the ground that there is no such general privilege; and that the imputation of base motives throws upon a public critic, as it would upon a private detractor, the necessity of bringing them home to the party maligned. According to this doctrine, the jury is not to be allowed to compare the comments with the evidence before the writer, and to say whether they were “fair” and justified by appearances. Nothing short of their being strictly true in fact, and proved to be so in open court, will relieve the latter of his liability.

Nevertheless, we have the authority of the Lord Chief Justice (Erle) of the Common Pleas (Turnbull v. Bird, 1861), for the principle that very strong and injurious language, if provoked and employed “for the purpose of maintaining the truth,” “without any corrupt motive,” may be innocent in the view of the law. We have the sanction of the same eminent Judge that “a man may publish defamatory matter in defence either of his private or his public rights. Every subject of this realm has a right to comment upon the acts of public men, for they concern him as such subject; but he must not make his commentary a cloak for malice. Such a commentary, however libellous, is justifiable if the defendant honestly believes that he is writing what is fair and just; but if he makes wilful misrepresentation, or misstatement that might have been avoided by ordinary care, his protection ceases.” We find it assumed by Chief Justice Erle, and stated in plain terms by Mr. Justice Willes, that there is such a thing as a “privilege of fair discussion on a matter of public interest,” though two of the learned Judges of the Queen’s Bench were at much pains to show that a right belonging to all her Majesty’s subjects cannot properly be called a “privilege.” Moreover, we have the general but most emphatic testimony of Lord Ellenborough, that where the “object” is “to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality,” there can be no libel.

In a case against the Lincolnshire Chronicle, the Judge, Mr. Justice Coleridge, laid down the law as follows:

“In discussing the public conduct of a public man, a journalist might certainly use the most unceremonious freedom, and juries should not be nice in criticising the language in which the censure might be conveyed, if they could see that the motive and spirit of the whole were public and honest. On the other hand, no newspaper was justified in commenting upon the private life even of a public man; but the present appeared to be an intermediate case. The plaintiff filled a public situation, but it could hardly be said that the paragraph was merely a comment upon his conduct as alderman, neither did it relate to a strictly private matter. The most objectionable paragraph appeared to him to be that which imputed to the plaintiff ‘confused notions on the important matters of meum and tuum,’ but the jury must look at the whole, and say whether in their opinion it exceeded the bounds of fair comment upon the conduct of a person filling the position which the plaintiff filled. The jury found a verdict for the defendant.”

But, by the judicial dicta in Campbell v. Spottiswoode, no greater latitude is allowed in comments on public topics than in remarks on private affairs. Any theoretical indulgence to the former, whether it be called privilege or not, is a worthless boon if truth, or rather legal demonstration, is to be the only test of “libel or no libel” for literary critiques. As Mr. Bovill well pointed out, no privilege is wanted where truth can be successfully pleaded. On the other hand, no privilege is demanded where malice can be established against the writer, or inferred by the jury from the tone and spirit of the composition. It is where a public critic, with the best and purest intentions, has injured the good name of a public man that the question arises. The great difficulty is to render the Press harmless to individuals, and yet to leave it powerful for good.—Abridged from the Times.

With regard to the propagation of Libel, “it may be some doubt in the eye of morality, whether the purchaser of a satirical libel does not share in the guilt of the author; and whether the pleasure in reading it is not of a criminal sort, and a proof of the malignity of human nature. There would be no thieves nor stolen goods, experience tells us, if there were no receivers; and no scurrilous writings nor libellous prints would be published, to corrupt the ear or gratify the impudence of the eye, if there were no purchasers.” These sentiments are from Bayle’s Essay on Defamatory Libels; and we remember Lord Brougham to have once expressed himself in almost the identical words of Bayle, in a speech on the Newspaper Stamp Duty.

Induction of a Rector.

The ceremony of inducting a clergyman to his benefice is briefly as follows: the instance being the induction of the Rev. Pascoe Grenfell Hill, Feb. 9, 1863, to the benefice of the united parishes of St. Edmund the King and St. Nicholas, Lombard-street. The Rev. Mr. Hill brought with him the Rev. J. Lupton, who performed the office of induction. The reverend Chaplain, therefore, accompanied by the Rev. Mr. Hill, proceeded to the church-door in Lombard-street, and the Clerk having put the key into the lock of the door, the Chaplain took Mr. Hill’s right hand, and placing it on the key thus inserted in the lock, said, holding the archdeacon’s mandate in his hand, “By virtue of this instrument, I, James Lupton, Rector of St. Michael’s, Queenhithe, induct you into the real, actual, and corporal possession of the United Rectory of St. Edmund the King and Martyr with St. Nicholas Acons, with all its fruits, members, and appurtenances.” The new Rector then opened the church door, and having entered the church, shut himself in, and then pulled one of the bells, so as to assure the public that he was in the church and had taken possession of it. He then returned to the church-door, opened it, and let his friends and the officials in.

Benefit of Clergy.

The privilege of Benefit of Clergy,—Privilegium Clericale—arose in the pious regard paid by Christian princes to the Church in its infant state, and consisted of—1st, an exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries; 2nd, exemption of the persons of clergymen from criminal process before the secular judge, in particular cases, which was the original meaning of the privilegium clericale. In the course of time, however, the benefit of clergy extended to every one who could read, for such was the ignorance of those periods, that this was thought a great proof of learning; and it was enacted, that from the scarcity of clergy in the realm of England, there should be a prerogative allowed to the clergy, that if any man who could read were to be condemned to death, the bishop of the diocese might, if he would, claim him as a clerk, and dispose of him in some places of the clergy as he might deem meet; but if the bishop would not demand him, or if the prisoner could not read, then he was to be put to death. 3 Edward I., 1274.—Benefit of Clergy was abolished by statute 7th and 8th George IV., c. 28.

The King’s Book.

“The King’s Book,” so frequently mentioned in connexion with the value of church livings, is the Return of the Commissioners appointed under 26 Henry VIII., c. 3, to value the first-fruits and tenths bestowed by that Act upon the King. The valuation then made is still in force, and the record containing it is that commonly known as the Kings’ Book (the Valor Ecclesiasticus, &c.) which has been printed by the Record Commission.

Compulsory Attendance at Church.

We do not find any very early regulations made to enforce the observation of festivals among Christians. The Middle Ages are somewhat more prolific. Attendance at church on the principal festivals was made a subject of inquiry, about A.D. 900, in Abbot Regino’s articles; and by that of Clovishoff, in 905, the clergy are enjoined to be more diligent in teaching, and the people to be more regular in their attendance. This observance is also enjoined by the laws of Canute, about 1032, which decree “all divine rites and offices, let every one studiously keep and observe; the feast-days and the fasts, let him celebrate with the utmost ceremony.” After the Conquest, the synod of Exeter, 1287, includes the “festival days,” with the Lord’s days, among those when the people ought specially to attend the churches. And Ascension Day, the feast of Corpus Christi, the high feast of the Assumption of our blessed Lady, and All Saints’ Day, are included with the Lord’s days, in the 27th Henry VI. (1450) in the list of days whereon the holding of fairs is prohibited.

The Acts by which at the Reformation it was attempted to secure the due attendance of the people upon the remodelled services include “the other days ordained and used to be kept as holidays.” But the application of their provisions to the attendance upon other holidays than Sundays, seems to have been pretty soon dropped. The statute of James the First, re-enacting the penalty of 1s. for default in attendance at church, is limited to Sundays; and the latter day alone is mentioned in the Acts of William and Mary, and George III.; by which exceptions in favour of dissenters from the Church of England were introduced. Mr. Neale, however, cites several cases which appear to settle that the ecclesiastical courts have not the power to compel any person to attend his parish church, because they have no right to decide the bounds of parishes.

The repeal of the Act enjoining attendance at church on the 5th of November, so far as Roman Catholics are concerned, by the 7 and 8 Victoria, c. 102, removing the penalties to which they stood exposed up to the year 1844, must be looked upon more as a piece of consistency in legislation than as the removal of a possible grievance. And a somewhat similar remark may be made in respect to members of the Church of England, upon the total repeal of the 1st of Elizabeth, so far as concerns the penalty of 1s., for non-attendance at church on holidays. As the statute of James applies solely to Sundays, there is now no civil punishment left for this neglect: though it would appear to remain punishable, under the 5th and 6th of Edward VI., by ecclesiastical censures.—Neale’s Feasts and Fasts, p. 307.

Among the recent cases of prosecution, in a Treatise on Sir Matthew Hale’s History of the Pleas of the Crown, by Professor Amos, the following passage occurs under “Repealed Statutes:”

“In the year 1817, at the Spring Assizes for Bedford, Sir Montague Burgoyne was prosecuted for having been absent from his parish church for several months: the action was defeated by proof of the defendant having been indisposed. In the Report of Prison Inspectors to the House of Lords, in 1841, it appeared that in 1830, ten persons were in prison for recusancy in not attending their parish churches. A mother was prosecuted by her own son.”

The Mark of the Cross.

The old Danish laws made it obligatory upon those who could not write to affix their bomærke (house-mark); and the Russians required a mark, or a cross. The probable reason why the cross was always used in the Middle Ages in the testing of ecclesiastical charters was not only that it was a sacred symbol, but that Justinian had decreed it should have the strength of an oath.—B. Williams, F.S.A.; Archæologia, xxxvii. p. 384.

Sir Henry Spelman tells us that “The Saxons in their deeds observed no set forme, but used honest and perspicuous words to express the thing intended with all brevity, yet not wanting the essential parts of a deed: as the names of the donor and donee, the consideration, the certainty of the thing given, the limitation of the estate, the reservation if any were, and the names of the witnesses, which always were many, some for the one part, and some for the other. As for dating, it was not usual amongst them. Seals they used not at all, other than (the common seal of Christianity) the sign of the Cross, which they, and all nations following the Greek and Roman Church, accompted the most solemn and inviolable manner of confirming.”

Marriage-Law of England.

On the 17th of March, 1835, Dr. Lushington, in the House of Commons, stated the history and principle of the Marriage Law of England thus—“By the ancient law of this country as to marriages, a marriage was good if celebrated in the presence of two witnesses, though without the intervention of a priest. But then came the decision of the Council of Trent rendering the solemnization by a priest necessary. At the Reformation we refused to accept the provision of the Council of Trent; and in consequence, the question was reduced to this state—that a marriage by civil contract was valid. But there was this extraordinary anomaly in the law, that the practice of some of our civil courts required, in certain instances and for some purposes, that the marriage should be celebrated in a particular form. It turned out that a marriage by civil contract was valid for some purposes, while for others—such as the descent of the real property to the heirs of the marriage—it was invalid. Thus, a man in the presence of a witness, accepting a woman for his wife, per verba de præsenti, the marriage was valid, as I have said, for some purposes, but for others to make it valid it was necessary that it should be celebrated in facie ecclesiæ. This was the state of the law till the passing of the Marriage Act in 1754.”

“Marriage, in its origin, (says Lord Stowell,) is a contract of natural law: it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that, because it is the one, it may not likewise be the other.”—(2 Hagg. Cons. Rep. 63.)

Marriage Fines.

In the feudal times, the lord might object to the marriage of a bondman’s daughter with a stranger, even of her own condition; and by marriage with a freeman she became free during coverture, if not free for ever; this and the lord’s approval of her marriage being purchasable by fine. At Swincombe, in Oxfordshire, the bondman could not get a husband for his daughter, and could not take to himself a wife, without the lord’s permission.

Although a fine used to be paid by a freeman in the occupation of bond-land, on the marriage of his daughter, there was no more degradation in such a fine than there now is in the Archbishop of Canterbury’s charge for a marriage-licence. At Southfleet, Friendsbury, Wouldham, and other places in their neighbourhood, a tenant who wished to give his daughter in marriage had to announce the marriage to the warden or bailiff of the village, and to invite him to the wedding; the girl could not be married to any one out of the manor without the lord’s good-will; an heiress could not be married even to a neighbour without the lord’s consent. A tenant at Headington, Oxon, paid no fine on the marriage of his daughter within the manor—he paid two shillings for leave to give her in marriage to a stranger; but we are told that payment was on account of the chattels which might be removed out of the manor with her. When we consider the lord of a manor to be the patron and protector of all within it, there seems to be nothing very offensive in this arrogation of assent to the marriage of his tenant’s daughter.

Irregular Marriages.

Little more than a century ago, a common notion prevailed that the performance of the marriage ceremony by a person in holy orders rendered it sacred and indissoluble, without regard to any other condition. Hence arose the scandals and indecencies of the Fleet Marriages, i.e., marriages performed in the Fleet prison, and its neighbourhood, by a set of drunken, swearing parsons, and their myrmidons, who wore black coats, and pretended to be clerks and registrars to the Fleet. Those malpractices were put an end to by the Marriage Act of 1754: the register-books were purchased by Government in 1821, and deposited in the Bishop of London’s Registry. A similar abuse flourished at May Fair, until it was abolished by the Act of 1754, when the register-books were deposited in St. George’s church, Hanover-square.

The “Border Marriages” were also of this class of abuses, and arose from nothing formerly having been necessary in Scotland to constitute a man and woman husband and wife save a declaration of consent by the parties before witnesses, or even such a declaration in writing without any witnesses: a marriage which was considered binding in all respects. Still, a marriage in Scotland, not celebrated by a clergyman, except these “Border Marriages,” was rarely or never heard of. They were performed at Lamberton toll-bar, about three miles north of Berwick-upon-Tweed; and at Gretna Green, the nearest locality accessible to strangers actually within the territory of Scotland.[7] The preliminaries of such a marriage used to be a long purse in hand or in prospect, for the purpose of meeting heavy posting expenses, and bribes to secure speed. In the course of time, facility of travelling by railway, and of obtaining licensed carriages from the stands in towns, increased; and the farm-servants and the servants generally in the Border counties began to avail themselves of what was deemed a lawful practice by their superiors from other places. During the holidays for farm-servants, at Whitsuntide and Martinmas, the times of the statute-hirings, parties generally under the influence of drink, and too often tipsy, would hire carriages in Carlisle, and drive, by the two or three couples in a carriage, over the Border to get married in Scotland; they would live together for two or three days, then go to their services, and perhaps never again think of their having been married at all; or not till circumstances might arise making it worth the while of one of the parties to claim conjugal rights, with a view to participation in an inheritance of property—a not uncommon accident among the natives of the Border Counties.

Under this state of affairs, at the Spring Assizes at Carlisle, in 1856, there were three trials for bigamy; upon the increase of which crime the Judge made some serious remarks to the Grand Jury, in his charge. A magistrate of Cumberland, having leisure time, and a sufficient acquaintance with the Marriage Laws of England and Scotland, to avoid falling into any gross error, set to work to frame Petitions to Parliament and the Home Secretary, reciting that such petitions were from the Magistrates of Cumberland, charged with the suppression of vice and immorality in their county; that a state of irregularity which had formerly been permitted in the Law of Marriage had grown into an abuse, under a change of circumstances; that the Petitioners thought that the young people of their county acted more out of levity and under excitement, than from any real want of good principle; and that they submitted the exigencies of the case might be met by requiring all parties, not being natives of Scotland, and wishing to be married in Scotland, to acquire domicile in Scotland, by a residence of a fixed number of days, prior to being considered entitled to the privilege of the laws relating to marriage in Scotland; and prayed that the parties petitioned would authorize such measures, &c. The Bench of Magistrates mostly approved of the petitions, one alone declining to sign. The clerical magistrates generally abstained from signing, urging that if they did sign, it might be objected that they had been instigated through interested motives. The petitions were signed by all the lay magistrates attending the Session at Whitehaven, and were forwarded to London for presentation; the Hon. Charles Howard taking charge of the petition to the Commons, but with misgivings as to its success; his only hope being that the substance of it might be passed in a clause of the Dissenters’ Marriage Bill, then before the House. Nor was the Home Secretary, Sir George Grey, more sanguine: he promised to look over the petition, adding the state of the feeling of the House was such that it could not be made a Government measure.

The petition to the Lords was taken charge of by Lord Brougham, who was selected because, at the commencement of the Session squibbing speeches had passed between him, with Lord Campbell on his side, and Lord Aberdeen joined by Lord Minto, relative to the laws of Scottish marriages. Such had also been the case in several sessions prior to the one of 1856: bills had been threatened to be introduced for altering the laws of marriage in Scotland entirely; but always, after Easter, the matter had been dropped.

At the above interview, Lord Brougham entered upon the state of the case with the Cumberland magistrate, who knew beforehand that a civil marriage between English in Scotland was not deemed valid for the inheritance of the offspring of real estate in England.[8] Lord Brougham confirmed this knowledge by citing instances in which real estates in England had not passed to the issue by marriages in Scotland; and he also mentioned that children born before marriage could be legitimized to the inheritance of estate and title in Scotland, by the subsequent marriage of the mother to the father; and Lord Brougham named, in the House of Lords, an instance of the fact. His Lordship added that the Law of Scotland ought to be changed, and must be changed, when it was replied that his Lordship would find that the object of the magistrates of Cumberland was not to change the Laws of Scotland, but to oblige natives of England to obey the Laws of England. We mention this to show how widely the ideas were astray from the real object in view.

A Bill founded on the principle of the petitions was introduced by Lord Brougham: it was quickly supported by petitions signed at large meetings convened in the Border Counties; at one of which, in Carlisle, a solicitor mentioned an instance wherein clients of his own had not only been married, but, in the woman’s opinion (she having succeeded to some property), had been divorced in the course of two or three days, by one of the officiating marriers of Gretna. One of these marriers, Murray, of Gretna, admitted that he had married between 700 and 800 couple in a recent year; and as there were two or three other marriers in good practice, the number of couples married at Sark toll-bar, and at Gretna, may safely be estimated at upwards of 1000 in the year.[9]

When the Bill came to its critical point in the House of Commons, the Lord Advocate for Scotland stated that “seeing that it did not interfere with the Law of Scotland, he should not object to its progress.” Thus, the Bill went through its third reading, and passed, within three months from its introduction; and thus was a stop put to a state of affairs threatening the rapid demoralization of the lower classes in the Border Counties and North-Western parts of England.[10]

Solemnization of Marriage.

The great facilities for Marriage afforded by the present state of the law will be apparent from the following recapitulation of the various forms and authorities, from the 20th Annual Report of the Registrar-General:

“Marriages may be solemnized—Authority.

1. According to the rites of the Established Church. Special licence from the Archbishop of Canterbury. Licence from a Surrogate, &c. Publication of banns. Certificate from the Superintendent Registrar.

2. In registered places of worship not of the Established Church. Licence from the Superintendent Registrar. Certificate from the Superintendent Registrar.

3. In the District Register Office. Licence from the Superintendent Registrar. Certificate from the Superintendent Registrar.

4. Between Quakers and between Jews. Licence from the Superintendent Registrar. Certificate from the Superintendent Registrar.

“By the English law as it stood before the passing of the Act of 6 and 7 Will. IV., c. 85, no marriage could be lawfully solemnized (except where both the parties were Quakers or Jews respectively) in any other place than a church or public chapel wherein banns might be published, unless by special licence from the Archbishop of Canterbury. This law was enforced by severe penalties; and if any persons intermarried without licence from a competent authority, or without the previous publication of banns, the marriage was null and void to all intents and purposes. Thus all persons (with the exception of Jews and Quakers), whether conforming to the Church of England or not, were compelled to resort to the Established Church in order to have their marriages lawfully solemnized. The boon conferred upon Roman Catholics and Dissenters generally by the amended law of 1836, which enables them to marry in their own places of worship and according to their own forms, may well be appreciated. The Act of 1856, besides abolishing the objectionable practice of reading notices of marriage before boards of guardians, has sanctioned marriage out of the district in the ‘usual place of worship’ of one of the parties, and reduced the interval between the giving of notice of marriage by licence and the grant of the licence from seven days to one clear day.”

The Law of Copyright.

The Publishers’ Circular gives the following summary of facts respecting the Copyright Laws:—In our own country, the copyright lasts 42 years absolutely for the author’s life, and seven years after his death. In Greece and in Sardinia it lasts only 15 years from the date of publication. In the Roman States it extends to 12 years after the author’s death. In Russia it lasts for 25 years after the author’s death, and for ten years more if a new edition has been published in the last five years of the first term. In Belgium and Sweden it lasts 20 years after the author’s death, with a provision in Sweden, that, should the representative of the author neglect to continue the publication, the copyright falls to the State. In France it lasts for the benefit of children or widow (that is, to the widow if she be what is called in France en communauté de biens, a peculiar arrangement in French marriage settlements, which establishes between husband and wife a perfect community in each other’s property) 30 years after the author’s death, but to other representatives only 10 years. In Spain it lasts 50 years, reckoning from the author’s death. In Austria, Bavaria, Portugal, Prussia, Saxony, the Kingdom of the Two Sicilies, Wurtemberg, and the States of the Germanic Confederation, it lasts 30 years from the author’s death, to all his heirs and assigns without distinction; and in Denmark, so recently as 1858, it lasted an indefinite period, provided the work was kept in print; now, however, it is restricted to a period of 30 years after the author’s death, with a provision that republication by others is permitted when five years have elapsed in which a work has been out of print. In the United States, copyright lasts for 28 years, and an extension of 14 years granted to the author if he lives, or to his widow, children, and grandchildren. With regard to lectures, sermons, &c., the law of France appears to be that professors and preachers have the sole right of reproducing their lectures and sermons in print; but that advocates and political speakers, while they alone have the right to publish their speeches in a collective or separate form, cannot prevent their being published in the journals of the time as news.

Holding over after Lease.

The doctrine is well established—viz., that where a tenant by lease holds over after the determination of the term, and pays rent, he becomes a tenant from year to year, under all the conditions of the expired lease consistent with such a tenancy. Baron Watson remarks—“It is important that no doubt should be thrown upon a question of such very general importance, as a great many of the houses in London and throughout the country are occupied by tenants holding over.”

Abolition of the Hop Duty.

The 15th September, 1862, dates the freedom of English Hops from Excise impost, and the abolition of Customs duties upon foreign Hops. Time alone can show the effect so serious a change will have on the average prices of a produce of increasing importance throughout the world. The general opinion is that under perfect freedom of trade hops will vary in price in each district of production only in proportion to their quality and the cost of transport; and that consumers will find prices more uniformly even than has hitherto been known, since the simultaneous failure in the crop at home and abroad is beyond probability.

This tax was first imposed by Mr. Harley in the year 1711; and its removal will make the hopgrower in future free from those heavy losses which the Duty inflicted on him in years of large crops and small prices. Hopgrowing has now become a simple farming operation, left to natural causes. It might be that, owing to the costly nature of the production and the precarious nature of the crop, it would always remain a somewhat more speculative branch of business than any other branch of farming. It is, however, thought that the supply of hops will be more abundant, and, above all, more steady and uniform from year to year. The consequence will be that the beer we drink will be more wholesome. Burton, in his Anatomy of Melancholy, says: “Beer made without hops is productive of heaviness and melancholy; but that well hopped is an antidote to it.”

Customs of Gavelkind.

The well-known treatise, entitled “The Common Law of Kent; or the Customs of Gavelkind, with the Decisions concerning Borough-English,” by Thomas Robinson, with additions by J. D. Norwood, comprehends everything relating to the subject, embracing all that is useful in Somner, Tayler, and Lambarde, as well as a full account of both tenure and custumal. The work contains chapters on the etymology and significations of the word Gavelkind; on the antiquity and universality of partible descents in England; on the places out of Kent where the custom of gavelkind may be alleged and maintained; on the manner of pleading the custom, and the difference between that and other counties, and between the general and special customs; on what lands and tenements in Kent are of the nature of gavelkind; of the effect of the alteration of the tenure and of the disgavelling statutes; on the nature of gavelkind in reference to descent and partition, and the remedy for and against parceners by the custom; on the special customs incident to gavelkind lands in Kent, tenancy by the courtesy; of dower, of customary wardship, and of alienation by any infant tenant in gavelkind; the father to the bough and the son to the plough, and the custumal of Kent with precedents. The principal peculiarities which distinguish socage lands subject to the custom of gavelkind from free or common socage are—1. That the lands descend to all males in equal degree, in equal shares. 2. That the husband is tenant by the courtesy of his deceased wife’s lands, whether there were issue born alive or not. 3. That the widow is dowable of one-half instead of the third. 4. That an infant may alien by feoffment at the age of fifteen. 5. That upon a conviction of felony, there is no escheat by reason of corruption of blood; corruption of blood only occurs now in cases of treason, petit treason, and murder—see 54 G. 3, c. 145. These peculiarities do not recommend themselves as possessing so great advantages as to induce us to continue a system of law in Kent different from the rest of England. One of its great disadvantages is the difficulty of deducing the title, on account of the complicated subdivisions of the estate.

Treasure Trove.

Treasure Trove (from the French trouver, to find, trouvé, found) is the law by which money, or other treasure, found hidden, is adjudicated to the legal claimant.

In 1863, Mr. F. Peel, (one of the Secretaries to the Treasury,) stated in Parliament:

It was by no means an unreasonable or absurd law that when an article of gold or silver, belonging to an unknown owner, was found, it should be held to be the property of the Crown. The rights of the Crown in that respect were not, however, rigidly enforced. The articles found were usually returned to the person who was declared to have the best claim to them; or, if they were of historical interest, they were deposited in the British Museum or some local collection, and their intrinsic value was paid to the finder. What the Treasury desired was to obtain speedy information of the discovery of any treasure trove. The Circular which was issued some time ago was intended to instruct the finders of any treasures how to communicate with the Crown on the subject.[11] That Circular was subsequently withdrawn because it laid claim to antiquities which were not exactly treasures and did not belong to the Crown, and because it directed a reference to the wrong tribunal in cases of dispute. The draught of another circular was prepared; but so many difficulties beset the subject that it was not deemed advisable to issue it. If occasion should arise for a new order it would of course be made, but there appeared to be no necessity for one at present.

Sometimes, the right to the property is confirmed by the special conditions of the holding of the property whereon it is found. Thus, at the above date, Lord Palmerston related in Parliament that about two years ago some workmen, when digging a drain on one of his farms, found a gold torque, which his Lordship purchased of the man who discovered it, the value being about 30l. Lord Palmerston, however, had an investigation made of the original grant of the farm several centuries ago, and ascertained that it conferred on the grantee all the treasure-trove on the property; wherefore his Lordship felt entitled to keep the relic in question.

In January, 1863, eleven pounds’ weight of ancient gold ornaments were ploughed up in the neighbourhood of Hastings, and were sold as old brass, to a man who had been a Californian gold-digger, and recognised the metal as solid gold. He was taken into custody, but discharged, the magistrates having no jurisdiction in the matter, the power of making such an investigation being vested, according to an old statute, (4th Edward I.) in the coroner; the jury returning a verdict that the gold, (value about 530l.) the owner or owners not being known, was the property of the Queen, and that the persons accused had concealed the finding from the Queen and the coroner. This discovery of gold ornaments, and their almost total destruction, render it desirable that the law of Treasure-trove should be made clear to popular comprehension: that if it is not just, as seems to be the common impression, it should be amended, and the practice of the Crown, in exercising its conventional rights, defined. At any rate, so long as finders do not know that they will receive full value for discoveries, and have not confidence in their appraisement, it is in vain to expect country-folk will yield Treasure-trove to an authority they contemn. In some parts a belief is held that such discoveries entail condign punishment upon the finders: it was formerly a capital offence; it is now a misdemeanour, punishable by fine and imprisonment.

It is difficult to make the peasantry comprehend manorial rights. A man who finds a treasure in his own ground, and that treasure one which can have no living owner, naturally looks on himself as its rightful possessor. He has probably never heard of King Edward’s law of Treasure-trove, and a natural sense of justice does not guide him rightly in the matter. If a liberal reward were given—nearly the metal value of the trouvaille—it is quite possible that we might have become possessed of many precious relics which now are broken up and consigned to the melting-pot.

In France, the right is more practically understood. Thus, in July, 1863, a pot of louis-d’ors was found in the Rue Lafayette, in Paris, when the following adjustment was made.

One of the labourers while at work, struck his pick on to an earthen jar, which broke, and out of which rolled several pieces of gold. The other workmen hearing the sound, rushed round the spot, probably to obtain a share of the treasure, when the latter cried out “Stop! Form a ring around me, and then let no one move.” The others obeyed. He then quietly picked up the pieces of gold, which he placed in his hat, and, taking up the broken jar which contained the remainder, he stood in the midst of the circle, and said, “Now call a sergent-de-ville to accompany me to the nearest police-office, where I will deposit the money.” This was done, and the prize was found to consist of 978 gold louis-d’or of twenty-four livres each, bearing the effigies of Louis XV. and XVI., the whole amounting to more than 23,000f. The whole was forwarded to the Prefecture of Police, where it was to remain during the inquiry to discover the legitimate owners of the property. It is only after that has been done that the share, attributed by law to the finder of a treasure, will be paid to the lucky workman.

Principal and Agent.

There is a well-known case involving this point, in which the late Lord Abinger differed from the rest of the Court of Exchequer: a plaintiff had employed an agent to let a house for him, and the defendant asked the agent “if there was any objection to the house;” to which the agent in perfect good faith answered, there was not. It turned out, however, that the adjoining premises were of a disreputable character, of which the plaintiff was aware, although his agent was not. The defendant, on the discovery of the objection, refused to fulfil his written contract to take the house; and the question was, whether he was liable for a breach of the agreement. Lord Abinger thought he was not, but the rest of the Court thought he was, and so judgment was given for the plaintiff. Upon merely technical grounds, perhaps, the majority of the learned Barons were right; but no one can read the masterly opinion of Lord Abinger without feeling that the law ought to be as he laid it down, and on the broad and simple ground that in such a case the knowledge of the principal should be held to be the knowledge of the agent.

Legal Hints.

Although no book ever was or ever can be written to enable a man to dispense with the assistance of a lawyer in cases where a knowledge of the law is practically required, attention to certain hints may save him from many a scrape. Of this kind are the following from Lord St. Leonards’s Handy-Book: You should be cautious whom you employ as an auctioneer, for any loss by his insolvency would fall upon you; he is your agent. We may add, however, that he is the agent of both parties, buyer and seller; and for that reason his signature satisfies the Statute of Frauds, and binds both. Again, you may employ one person to bid for you at an auction when you sell property, to prevent its going beneath its value; but you must not employ more than one, for that would be considered unfair puffing. Never bid for a leasehold estate clogged with the condition that the production of a receipt for the last half-year’s rent shall be accepted as proof that all the lessee’s covenants were performed up to that period; for there may have been a prior breach of covenant, and the landlord may not have waived his right of entry for the forfeiture. Do not take possession of an estate until objections to the title are removed, for such a step would in some cases be held to be an acceptance of the title. Before you enter an auction-room make up your mind as to price, and do not be led away by the persuasions of the auctioneer, who is the agent of the seller, or the biddings of others. Do not sign a contract tendered to you by the auctioneer, unless a reciprocal contract is signed and delivered to you at the same time by him. In writing about the sale or purchase of an estate, you should always cautiously declare your offer not to be final, lest the other party should, by accepting the terms you mention in your letter, not intending them to be final, entrap you into a binding contract. Mind your fire insurances. Very few policies against fire, says Lord St. Leonards, are so framed as to render the company legally liable. If you have added an Arnot’s stove, or made any other important change in your mode of heating your house since your policy, you should call upon the Company to admit the validity of your policy by an endorsement on it.

Vitiating a Sale.

It is rather startling to hear an ex-Lord Chancellor saying, “Thus I have told you what truths you must disclose. I shall now tell you what falsehoods you may utter in regard to your estate.” Of course it is not meant that morally any falsehood may be told, but only that there are some which do not, at Law or in Equity, vitiate the contract of sale. And it is curious to see the distinctions taken in these falsehoods. They remind us of the difference in Roman Catholic theology between venial and mortal sins. Thus, you may falsely praise, that is, puff, your property. You may describe it as uncommonly rich water-meadow, although it is imperfectly watered. In selling an advowson you may falsely state that an avoidance of the living is likely to occur soon. You may say, as a mere puff, that your house is fit for a respectable family; but you may not say, in answer to inquiries, contrary to the fact, that the house is not damp. And you must disclose a right of sporting or of common over your estate, or a right to dig mines under it. The reason of such distinctions as given by the law—valeat quantum—is, that some statements are cautions to purchasers to make inquiries for themselves, and that concealments, to be material, must be of something that the party concealing is bound to state. Although Lord St. Leonards (in his Handy-Book of Property Law) does not allude to the point, we might, had we space, while upon this subject, enlighten our readers by a set of cases in which the law relating to bugs is elaborately laid down, and explain to them in what instances the presence of these domestic nuisances in inconvenient numbers does or does not affect a contract for taking a house. But we must be content to refer them to the leading authorities in the pleasant volumes of Meeson and Welsby, where they will find the law fully expounded.—Saturday Review.

Law of Gardens.

Some persons, when leaving a place, finding they could not remove the trees and shrubs, have them cut down; but they were actionable, for the law prohibits waste with malevolent intentions. The decision given in the case of Buckland v. Butterfield establishes this point; for “a tenant is liable to pay for the waste, if he cuts down or destroys,” &c. And it has also been decided by Lord Denman, Mr. Justice Littledale, and Mr. Justice Parke, that a tenant could not remove a border of box, planted in the garden by himself; but that it belonged to the landlord, in the absence of any agreement to the contrary. In the course of the argument the counsel for the tenant asked, “Could not the tenant remove flowers which he had planted in the ground?” Mr. Justice Littledale instantly said, “No.”

Giving a Servant a Character.

The giving a Character to a Servant is one of the most ordinary communications which a member of society is called on to make; and, as the learned Mr. Starkie observes, is a duty of great importance to the interests of the public; and in respect of that duty a person offends grievously against the interests of the community in giving a good character where it is not deserved, or against justice and humanity in either injuriously refusing to give a character, or in designedly misrepresenting “one to the detriment of the individual.”

The following Rules are suggested for the consideration of masters and mistresses not acquainted with the law in such cases:

Rule 1. No magistrate has any jurisdiction touching the character of a domestic servant; and the common threat of a master or mistress being summoned for not giving a character is absurd.

Rule 2. It has been clearly decided that a character honestly and bonâ fide given by a master or mistress to any person making the usual inquiry, is a privileged communication; and unless inconsistent with truth, or actual malice can be proved by evidence, no damages can be sustained. But it must be carefully borne in mind that, however truly or honestly the character may be given, an action at law can be brought against the master or mistress, and the ladies of the family put to the anxiety of appearing in court, as well as the lady to whom the character was given. And, although the servant may be immediately defeated, and the case stopped by the judge, you will find yourself some fifty or sixty pounds out of pocket by your victory.

Rule 3. The only safe course, when a master or mistress cannot in sincerity and truth recommend a servant, is to decline answering any questions on the subject, and the following form of written answer may prove useful: “Mrs. A. presents her compliments to Mrs. B., and in reply to her note requesting the character of Ann C——, trusts she will kindly excuse Mrs. A. declining to answer any questions on the subject.” Address and date. A copy should be kept.

In the case of Carrol v. Bird, the courts of law have decided that neither master nor mistress is bound to give a character, and that no action will lie against them for refusing. The cases also of Taylor v. Hawkins are well worthy of notice. It must, however, be repeated, that both justice and humanity claim from a master and mistress their kindest care and consideration for the character of their servants, more particularly female servants; but it is confidently believed that if the above rules were better known and more generally acted on, all good and honest servants would be gainers.—Times, April 19, 1860.

It may be useful to mention here that in the Court of Exchequer, a cook, formerly in the service of Col. Sibthorp, M.P., brought an action against him for an alleged libel in a letter to a lady who had applied to him for the character of the cook, but which was not satisfactory to the lady. It was submitted the Colonel’s letter being proved a privileged communication, the action could not be maintained without proof of express malice on the part of the defendant, of which there was not the slightest evidence; the judge concurred in this view, and the plaintiff was accordingly nonsuited.

Deodands.

Within memory, when an accident occurred, it was customary to inflict a kind of fine or penalty thus: supposing a boy was run over by a vehicle, the verdict was recorded “Accidental death, with a deodand of one shilling upon the cart.” In the Liber Albus (27 Henry III.), we read that a man fell from a boat into the Thames, and was drowned; no one was held in suspicion as to the same; the judgment was “Misadventure,” and the value of the boat, 4s. 7d., was exacted as a deodand, payable to the king. [See Things not generally known, First Series, p. 173.] The deodandum (Deo dandum, given to God) of our jurisprudence may be reckoned among the mysterious things of history. The deodand is philanthropic, it is religious, and it is so far clerical, that its value, when levied, was handed over to the clergy. Fleta, a commentator on English law, temp. Edward I., says that the deodand is to be sold, and the price distributed to the poor, for the soul of the king, his ancestors, and all faithful people departed this life. Yet it was not ecclesiastical: it cannot be recovered by suit in the courts of canon law, but only in the courts of the king’s coroner, either for counties, or for all England. This ancient custom was abolished by act 9th and 10th Vict., cap. 62, which enacts that subsequent to September 1st, 1846, there shall be no forfeiture of chattels in respect of homicide.

Arrest of the Body after Death.

It was long erroneously believed that the body of a debtor might be taken in execution, in this country, after his or her death. Such, however, was the practice in Prussia, till its abolition by the Code Frédérique.

The above idle notion we remember to have been repeated in connexion with the pecuniary embarrassments of Sheridan, at the time of his death, in 1816. It may have been fostered through the mis-reading of an account of a sheriff’s officer arresting the dying man in his bed; “he would have carried him off in his blankets, had not Dr. Bain assured him it was too probable his prisoner would expire on the way to the lock-up house!” After Sheridan’s death, the removal of his remains from Savile-row to Mr. Peter Moore’s house, in George-street, Westminster, to be near the Abbey for interment, more probably led to the story that the body was removed to escape arrest.

The Duty of making a Will.

When in 1859, Lord Northwick’s collection of pictures was about to be disposed of by auction, at Thirlestane-house, Cheltenham, we paid a visit to the gallery, and great was our regret at the thought of the dispersion of so extensive a collection, which had long been the pride of Cheltenham, and had been to that thriving town what the National Gallery is to the metropolis. Lord Northwick had collected these pictures during a life extending for nearly a quarter of a century beyond the average term allotted to man. Until within a year or two of Lord Northwick’s death, in 1859, he spent much of his time every day among his pictures, and took great delight in pointing out their beauties to any intelligent visitor. The collection, and another at Campden, were swept away by sale, which realized nearly 100,000l. Upon our visit to the Thirlestane Gallery, much as we were gratified with the pictures, we became impressed with the futility of devoting a long life to their collection, without providing against their dispersion; and subsequently to the sale, there appeared in the Morning Post the following remarks, which more fully bespeak our own feelings upon the subject:

We contemplate the dispersion of these pictures with two painful reflections, which, by way of caution or suggestion to other collectors, we wish to impress upon the public. The first is the comparative uselessness of collecting works of art without some provision for their preservation. The purpose of a life is dissipated, and a new illustration is given to the preacher’s moral, “Vanitas vanitatis est omnia vanitas.” Undoubtedly, he who collects treasures of art in the way Lord Northwick did, and gives the public the benefit of them during his life, does a great service in his day and generation; but it is impossible not to remember how much greater a service he renders who not only forms a collection but provides for its perpetuity. In the next place, see the duty of making a Will. These collections are dispersed because they form a portion of the personalty of the deceased, and there being no instructions as to their disposal, there is no choice but to sell them, and appropriate their proceeds among the heirs-at-law. Next to the mischief of making an unfair Will is that of making none at all. Had Lord Northwick ordered by Will the sale of his pictures, however disappointed the world might have been, it would have been felt that he had a right to do as he liked. But dying intestate, the sale follows as a matter of course, and the results of a long life and large fortune devoted to works of art are just nowhere. A gallery of pictures left to a family or to the public is an offering at the shrine of art; but, sold by auction, and dispersed among innumerable private purchasers, is sheer vanity and labour lost.

Don’t make your own Will:

Lord St. Leonards, in his Handy-Book of Property Law, says: “I am somewhat unwilling to give you any instructions for making your Will, without the assistance of your professional adviser; and I would particularly warn you against the use of printed forms, which have misled many men. They are as dangerous as the country schoolmaster or the vestry-clerk. It is quite shocking to reflect upon the litigation which has been occasioned by men making their own Wills or employing incompetent persons to do so. To save a few guineas in their lifetime, men leave behind them a Will which it may cost hundreds of pounds to have expounded by the courts before the various claimants will desist from litigation. Looking at this as a simple money transaction, lawyers might well be in despair if every man’s Will were prepared by a competent person. To put off making your Will until the hand of death is upon you, evinces either cowardice or a shameful neglect of your temporal concerns. Lest, however, such a moment should arrive, I must arm you in some measure against it.

“If you wish to tie up your property in your family you really must not make your own will. It were better to die without a will, than to make one which will waste your estate in litigation to discover its meaning. The words “children,” “issue,” “heirs of the body,” or “heirs,” sometimes operate to give the parent the entire disposition of the estate, although the testator did not mean any such thing. They are seldom used by a man who makes his own will without leading to a lawsuit. And now an operation has been given to like words by the new statute, which I could not explain to you without you possessed more knowledge of law than I give you credit for. It were useless for me to show how to make a strict settlement of your property, and therefore I will not try. I could, without difficulty, run over the names of many judges and lawyers of note, whose wills made by themselves have been set aside, or construed so as to defeat every intention which they ever had. It is not even a profound knowledge of law which will capacitate a man to make his own will, unless he has been in the habit of making the wills of others. Besides, notwithstanding that fees are purely honorary, yet it is almost proverbial that a lawyer never does anything well for which he is not fee’d. Lord Mansfield told a story of himself, that feeling this influence, he once, when about to attend on some professional business of his own, took several guineas out of his purse and put them into his waistcoat pocket, as a fee for his labour.”

Bridewell.

This name, from a well dedicated to St. Bridget, or St. Bride, between Fleet-street and the Thames, was given to a palace built there, and which, soon after, became a House of Correction, in the reign of Queen Mary. Hence, places of confinement in other parts, in which employment and penitentiary amendment were leading objects, were called Bridewells.

The greater part of the City of London Bridewell was taken down in 1863; committals are now made to the City prison at Holloway, but refractory City apprentices are still committed to Bridewell by the Chamberlain, this jurisdiction being preserved by the Court of Chancery. The number of committals rarely exceeds 25 annually, nevertheless the power of committal which the present Chamberlain has most praiseworthily asserted and successfully maintains, acts as a terror to evil-doers, and keeps in restraint 3000 of these lads of the City.

By a document lately discovered in the State-Paper Office, it appears that in the Bridewell of London were imprisoned the members of the Congregational Church first formed after the accession of Elizabeth; they were committed to the custody of the gaoler, May 20, 1567.

Cockfighting.

British cocks are mentioned by Cæsar; but the first notice of English cockfighting is by Fitzstephen, in the reign of Henry II.; and it was a fashionable sport from temp. Edward III. almost to our time. Henry VIII. added a cockpit to Whitehall Palace, where James I. went to see the sport twice a week. There were also cockpits in Drury-lane, Shoe-lane, Jewin-street, Cripplegate, and “behind Gray’s Inn;” and several lanes, courts, and alleys are named from having been the sites of cockpits. The original name of the pit in our theatres was the cock-pit, which seems to imply that cockfighting had been their original destination. One of our oldest London theatres was called the Cockpit; this was the Phœnix in Drury-lane, the site of which was Cockpit-alley, now corruptly written Pitt-place. Southwark has several cockpit sites. The cockpit in St. James’s-park, leading from Birdcage-walk into Dartmouth-street, was only taken down in 1816, but had been deserted long before. Howell, in 1657, described “cockfighting, a sport peculiar to the English, and so is bear and bull baitings, there being not such dangerous dogs and cocks anywhere.” Hogarth’s print best illustrates the brutal refinement of the cockfighting of the last century; and Cowper’s “Cockfighter’s Garland,” greatly tended to keep down this modern barbarism, which is punishable by statute. It was, not many years since, greatly indulged in through Staffordshire; and “Wednesbury (Wedgbury) cockings” and their ribald songs were a disgrace to our times.

Cockfighting was, in fact, the great national amusement, particularly in the north of England, and Berwick-upon-Tweed was among the places most celebrated for it. Some ninety years ago, in the north of England, when a cockfighting was about to take place, the parties were in want of an adept in putting on the spurs: a person present was recognised by an acquaintance, who exclaimed, “Here comes a Berwick man; he knows how to do it.” Cockfighting is now legally a misdemeanor; and on the 15th of April, 1857, at the Liverpool Police Court, James Clark, a publican, in Houghton-street, was fined 5l. and costs for permitting cockfighting in his house.

In the autumn of 1862, several persons were convicted by the magistrates at Barnsley, for cockfighting, under the Act, which inflicts a fine on any one assisting at a cockfight, in a place used for the purpose. This is an absurd condition, and is a blunder of the Act-framer. Now, the place used for the purpose of this fight was an old quarry; but the magistrates held that any place where a cockfight took place was a place used for the purpose, the fact of the fight being the evidence of the use. The case came by appeal before the Court of Queen’s Bench, when the Judges decided, in accordance with a ruled case, there must be some evidence of general use, if on a piece of waste ground, and that one act would only prove the use when it was a place over which a man had some control. The judgment was therefore reversed. At Bradford, within a few days of this decision, William Speight and J. Holroyd were fined 3l. each for cruelty in having set gamecocks to fight; twelve other persons, resident in various parts of the Riding, were fined 10s. each.

On June 24th, 1863, before a bench of magistrates at Loughborough, the Marquis of Hastings, and three of his gamekeepers, were charged, on behalf of the Society for the Prevention of Cruelty to Animals, with causing a cock to be cruelly tortured. It was proved in evidence that three weeks before, the Marquis of Hastings had “some good cockfighting” at Donington Hall, on a Sunday! They fought six pairs of cocks, six cocks were killed, all had steel spurs on, and the Marquis was one of the persons who put the cocks together to fight; the other persons accused being spectators. Lord Hastings admitted that the fight had taken place, but denied that there had been any cruelty used in the sense of the words of the information. His Lordship was, however, convicted in the penalty of 5l., and his three keepers in 2l. each.

Ignorance and Irresponsibility.

Sir John Bowring states that he remembers a murder occurring in Ceylon, and on the murderer being brought to trial, it was found utterly impossible to make him comprehend that he had committed any sin whatever in revenging himself upon one by whom he thought he had been injured. The consequence was that the Judge came to the conclusion that the murderer could not be held responsible for his crime. So ignorant was this man that he could not count up to the number of five, losing himself always at three.

Ticket-of-Leave Men.

Archbishop Whately, who always handles a practical subject in a masculine way, annihilates the English Ticket-of-leave system with a single sentence:—“What should we think of a right, encouraged by a Secretary of State, to go every day to a menagerie and let out by mere rotation one animal from a cage without inquiring whether he released a monkey or a tiger?” The Archbishop proposes that all sentences beyond fifteen years should be irreversible, except by an Act of Parliament, specifying the names, offences, and previous committals of the prisoners pardoned.

Cupar and Jedburgh Justice.

It is an odd circumstance that Lord Campbell, to whom both as judge and legislator the law of England owes so much, was born at a place which gives its name, “Cupar justice,” to the peculiar system of law which hangs a man first and tries him afterwards; and that he had his country residence (Hartrigge-house, Roxburghshire) in the neighbourhood of another town which gave the name of “Jedburgh justice” to an equally summary code, the great principle of which is, “Hang all or save all.”

What is to be done with our Convicts.

Transportation having had a fair and patient trial, and having altogether failed as a punishment, and having no colony fitted and willing to receive the sweepings of our gaols, the alternative to which we are compelled is to keep our convicts at home, and to make the best of them, by making them self-supporting. Or, in the forcible words of the late Mr. Charles Pearson, City Solicitor:

If the honest millions, as they pass through life, can, and do, during what is recognised as the producing age, not only provide for their own wants, but create a large surplus, by which the non-producing classes are supported and the institutions of society are maintained, it surely ought not to be endured that any portion of the same race and of the producing age ... should be permitted to renounce their allegiance to the fundamental law of their existence, and declare in practice, that by the sweat of the face of other men, they will eat of earth’s choicest fruits.

The only rational, merciful, and effectual corrective of such offenders against all laws, human and divine, is to classify and place them in secure prisons, surrounded by lofty and substantial walls; to subject them, week by week, to seventy, or at least sixty, hours of useful and profitable work; to allow them sixty, or at most seventy, hours for food, rest, cleanliness, and their other bodily requirements; to give them twenty-eight hours with means and opportunities for mental and spiritual instruction, and for the public and private worship of God.... If any Government, having thus placed at its disposal annually the hundred millions of hours of confiscated labour, which 30,000 criminals would yield, cannot make the class not only self-supporting, but productive of a surplus for the future benefit of those who produce it, such a Government would be pronounced by men of business unfit to be at the head of a great manufacturing and commercial people.

The Game Laws.

In 1834, Mr. Henry Warburton, in Parliament, denounced the Game Laws as they then existed, in this remarkable illustration:—“I have read in Mariner’s account of the Tonga islands, that there the rats were preserved as game; and, though everybody might eat rats, nobody was allowed to kill them but somebody descended from their gods or their kings. This is the only country and the only case I know of which furnishes anything like a parallel to our game laws.”

The Pillory.

The Pillory (Fr. pilori, probably from Lat. pila, a pillar) was a mode of punishment by a public exposure of the offender long used in most countries of Europe. No punishment has been inflicted in so many different ways as that of the pillory. Sometimes the machine was constructed so that several criminals might be pilloried at the same time; but it was commonly capable of holding but one at once. Francis Douce, in his Illustrations of Shakespeare, vol. i., p. 146, gives six representations of distinct varieties of this instrument. These varieties are all reducible, however, to the simplest form of the pillory. It consisted of a wooden frame or screen raised on a pillar or post several feet from the ground, and behind which the culprit stood supported on a platform, his head and hands being thrust through holes in the screen, so as to be exposed in front. This screen, in the more complicated forms of the instrument, consisted of a perforated iron circle or carcan (hence the name given to the pillory in French), which secured the hands and heads of several persons at the same time.

The Pillory seems to have existed in England before the Conquest, in the shape of the stretchneck, in which the head only of the criminal was confined; but it was usually constructed for the head and hands. It was used for punishing all sorts of cheats; as, bakers for making bread of light weight; fraudulent com, coal, and cattle dealers; cutters of purses; sellers of sham gold rings; forgers of letters, bonds, and deeds; users of unstamped measures, &c. It was also a Star Chamber punishment; and from the time of Titus Oates to its abolition, the pillory was a common punishment for perjury. The usual places where the pillory was pitched were the Royal Exchange, the Old Bailey, Temple Bar, Lincoln’s-Inn Fields, Charing Cross, New Palace Yard, and Tyburn. About the year 1812, the writer remembers to have seen four men in the pillory, at the north end of Fleet-market (Holborn-bridge). The last person who stood in the pillory in London, was Peter James Bossy, for perjury, in the Old Bailey, June 23, 1830. A pillory is still standing at Coleshill, in Warwickshire; and in an unused chancel of Rye church, Sussex, is a pillory, last used in 1813. The pillory was abolished in Great Britain in 1837, by stat. 1 Vict., c. 23; and in France in 1832.